Sui Generis CP - Michigan 7 2024 BDKLS

Sui Generis – Supplement - BDKLS
Neg
Notes
Shout out to Sophia, Tara, Sarika, Aanya, Akhil, Cormac, Kevin, Lilli F, and Smaritha for all of their work on this file!
General note: I did not put the “ban the plan” or “ban x category of IPR” stuff in the original starter pack file because that seemed like an overly technical thing to do in a starter packet file, but I generally think that’s the much stronger version of this CP and I would recommend doing that. Pretty much all the specific versions below reflect that.
Other general note: Stop first striking people and learn the competition/net benefit debate – I swear it’s doable (or I wouldn’t have put the file out). I have also included a ton more perm answers (most on specific versions but a couple on the regular version) and some new net benefits that are designed to reassure you about competition. Please look before adding goofy things to the CP.
That being said – there is plenty of room for reasonable creativity! This is designed to be a modular CP – IE, you can smush different versions of it together.
As a hint for fun additional creativity, I’m pretty sure multiple cards in this file would suggest that some type of combination of the multilat CP and the sui generis CP might be a good thing. I’ll just leave you with those breadcrumbs.
Breakdown by section:
Sui Generis (All Versions)
The top section is designed to bolter any version of sui generis you might read.
For perm do both, the most technical argument here is that there was a court decision that indicated that in a world where both patents and sui generis protection existed, the stronger IP right (in this case patents) supersedes the weaker one. You can use this to make the argument that “perm do both” functionally just becomes “perm do the aff” in addition to all of the arguments you were already reading. The dissenting opinion of that decision noted that this is probably bad and the counterplan would concur. Please combine the new perm answers with the old ones.
The Commons Sui Generis (v. Waivers + Biotech Affs)
I have this part constructed primarily against the waivers aff right now. It is also potentially competitive against a variety of different affs that involve biotech, but you’ll have to do that sorting on your own. This is a very different version of sui generis that generally does pretty much the opposite of the plan. I found an article that critiques the West for threatening to pull the waive for vaccine purposes and instead proposes an inclusive sui generis right that puts vaccine biotech into a concept called The Commons. The argument is that this not only solves the aff advantages better but creates a Global Health Security fw that solves a lot of things better. There is also highly aff specific thickets evidence. This is a version that is very technical and not the easiest, but I think it could have a lot of competitive rewards if you take the time to process it.
I did not cut aff answers because the CP is the opposite of the aff – for people reading waivers, you just have to win your internal links/patents good.
Indigenous Traditional Knowledge Solvency/Net Benefit
This is most powerful when used against an aff that deals with indigenous rights BUT can also be used as an external net benefit to affs when combined with ban x category of IP. I really like this version because it has strong PDB answers. While there is currently a util impact, there are ethics/soft left type arguments embedded in the cards if you prefer to go in that direction.
Small farmers PIC/net benefit
This version works against any aff that extends biotech patents. The argument is that patents do not allow carve outs for specific populations but sui generis does (see PDCP cards). The argument is that this particular sui generis system would exempt small farmers from the biotech/patent rules for food security etc. reasons. You really need to think through the competition debate but I think it’s ultimately pretty viable.
Email lucasbol@umich.edu (+ at least one other person) with questions!
-Alyssa Lucas-Bolin
Sui Generis (All Versions)
Competition
A2 Perm Do Both
Perm do both is functionally perm do the aff – Monsanto v Schmeiser prove the aff overrides the sui generis right
Farah and Prityi 23 [Paolo Davide, Professor of Public Administration at West Virginia University, Marek, lawyer at Eversheds Sutherland, L.L.M from University of Cologne, “When John Locke Meets Lao Tzu: The Relationship Between Intellectual Property, Biodiversity and Indigenous Knowledge and the Implications for Food Security,” Duke Environmental Law & Policy Forum, pg. Lexis, ALB]
One of the preconditions for determining patent infringement is whether the patented subject has been used. For this reason, it needs to be determined whether cultivating plants containing the cell and gene may amount to infringement, or if a patent might be infringed only by "patented invention in isolation." The Supreme Court pointed to the commercial nature of agriculture and dismissed the farmer's argument that patent infringement should be interpreted narrowly because plants reproduce themselves "through the laws of nature, rather than human intervention."118Link to the text of the note The Supreme Court decided the dilemma between patent protection and property rights of farmers - invoking essentially the concept of farmers' rights - in favour of patent protection, extending it over genes as well as modified cells.
The fact that, in the Supreme Court's reasoning, the patent might be infringed in a situation where the intent or use of the gene is absent seems to be important in this regard. However, the dissenting opinion to the judgment suggests that enabling gene and cell claims to extend patent protection to plants might undermine the flexibility under Art.27.3(b) of the TRIPs Agreement.121Link to the text of the note Moreover, it is also suggested that applying the sui generis system of protection - which was already in place at that time in Canada - would be more appropriate, since the patent protection should not take precedence in cases where another, more tailored form of intellectual property protection is in place. The term "sui generis" means "of its own kind" [*101] and is often used to describe unique or specific systems or arrangements. In the context of intellectual property rights related to biodiversity and traditional knowledge, a sui generis system refers to a framework tailored to address the unique characteristics and needs of traditional knowledge holders and indigenous communities.124Link to the text of the note
The dissenting opinion suggests that a more sensitive approach would contribute to a better balance between the interests of biotechnology and farmers. However, the Supreme Court still managed to send a signal to biotechnology industry: even though it concluded the existence of patent infringement, it did not award any damages to Monsanto. In this way, the Supreme Court essentially removed the monetary incentive to initiate a lawsuit by making clear that not even the interpretation of patent law in favour of industry necessarily assures the award of damages.
Nevertheless, the answer to the question essentially posed by Percy Schmeiser - where do Monsanto's rights end and his rights begin - was not answered in Schmeiser's favour. From the perspective of resilient food production, in Schmeiser's opinion, it is rather questionable whether bioengineered food crops protected by patents have substantially improved yields and resulted in reduced use of pesticides and herbicides. It is quite undisputable that these bioengineered products have considerably increased the profits of corporations holding patent rights over them. However, it has been suggested that the track record since the introduction and boom of patents over plants demonstrates a loss of biodiversity, extended use of pesticides and herbicides, as well as lower crop yields.
The perm causes massive court clog and industry distrust
Thikkavarapu 18 [Prashant Reddy, B.A.LLB (Hons.) degree from the National Law School of India University in 2008 and a LLM degree from Stanford Law School in 2013, worked litigation teams at two Delhi-based law firms specializing in intellectual property law, co-author of Create, Copy, Disrupt: India’s Intellectual Property Dilemmas, “The overlap between the Patents Acts and theplant variety protection & Farmer's Rights Actin India: A seed of doubt,” DOI: 10.1111/jwip.12103, The Journal of Worldwide Intellectual Property, pg. WileyOnline, ALB]
The debate over intellectual property protection for new plant varieties in India goes back to 1967 when the Seed Review Team, constituted by the government of India, recommended the enactment of a law to incentivize the creation of new plant varieties (Kochar, 2010). However, no action was taken in this regard till the signing of the Agreement on Trade Related Intellectual Property Rights (TRIPS). This Agreement, which was a part of the WTO Agreement, gave its signatories three options when it came to protecting new plant varieties: either protect new plant varieties under national patent law or enact a sui generis legislation to protect only plant varieties or a combination of these two systems.
Like many other countries, India chose the option of enacting a sui generis legislation called the Plant Variety Protection & Farmer's Rights Act, 2001 (PVPFRA) to protect new plant varieties. This law appears to draw some inspiration from the International Union for the Protection of New Varieties of Plants (UPOV) although there remain significant differences between Indian law and UPOV. It should be mentioned that the Indian law has some rather unique provisions on “farmer's rights”, which mandate benefit-sharing in certain circumstances (Jayaraman, 2001). Anew variety can be registered under the PVPFRA as long as it conforms to the criteria of novelty, distinctiveness, uniformity and stability. 2 The country also amended its patent law in 2002 to specifically exclude the possibility of patent protection for plants and plant varieties. 3
The policy objective behind excluding plants from patent law, while enacting a sui generis law for protection of new plant varieties was to prevent overlapping of the two legal regimes. However, as has happened in jurisdictions like the EU, the advent of biotechnology has complicated efforts at maintaining a bright line between the PVPFRA and the Patents Act in India. These overlaps between both legislation are now the subject of a legal dispute in India between Monsanto and its Indian licensees and the subject of considerable confusion amongst the seed industry (Bhardwaj,2017).
Indian seed companies operating under the National Seed Association of India (NSAI) have publicly questioned the validity of the patents granted to Monsanto and also raised issues that can be traced to the overlap between the Patents Act and the PVPFRA (Reddy, 2016a, August 31). Most of the issues being raised in this litigation could have been avoided if Indian policy makers, who drafted the PVPFRA, had studied similar litigation and policy changes that took place in Europe in the 90s (Llewelyn, 1997; Nott, 1999)
<Read impact to court clog/litigation here if it’s not present elsewhere in the debate>
A2 PDCP
The CP is distinct from the plan – six reasons
Harrison 23 [Robert, founding partner of SONNENBERG HARRISON. Patent and trademark attorney focused on semiconductors, chemical engineering, computer science, photonics, telecommunications, microtechnology and biophysics, “Patents and Utility Models,” chapter in book Overlapping Intellectual Property Rights, Second Edition, edited by Neil Wilkof, Shamnad Basheer, and Irene Calboli,
https://doi.org/10.1093/oso/9780192844477.001.0001, pg. Lexis, ALB]
5.05
The term ‘utility model’ is used by the World Intellectual Property Organization (WIPO) to indicate a type of exclusive right granted (or registered) on an invention which is ‘different’ from patents.1 The concept goes under different names in different countries, but there are common elements:
The requirements for filing and registering a utility model are generally less stringent than for patents. While the requirement of ‘novelty’ is always to be met for both patents and utility models, the requirement of ‘inventive step’ or ‘non-obviousness’ may be much lower or absent altogether.
The term of protection for utility models is generally shorter than for patents and varies from country to country (usually between seven and ten years2 without the possibility of extension or renewal beyond that date).
In most countries where utility model protection is available, patent offices do not examine applications as to substance prior to registration. This means that the registration process is often significantly simpler and faster, taking, for example, as little as six months.
Utility models are much cheaper to obtain and to maintain.
In some countries, utility model protection can only be obtained for certain fields of technology and only for products but not for processes.3
5.06
As WIPO comments, utility model protection is generally considered suitable for ‘protecting inventions small improvements to, and adaptations of, existing products or that have a short commercial life’.4
Solvency
Investment/Speed
Sui generis apps get approved much more quickly than the aff – that solves investment and infringement
Harrison 23 [Robert, founding partner of SONNENBERG HARRISON. Patent and trademark attorney focused on semiconductors, chemical engineering, computer science, photonics, telecommunications, microtechnology and biophysics, “Patents and Utility Models,” chapter in book Overlapping Intellectual Property Rights, Second Edition, edited by Neil Wilkof, Shamnad Basheer, and Irene Calboli,
https://doi.org/10.1093/oso/9780192844477.001.0001, pg. Lexis, ALB]
The short period of time between filing of the utility model and its entry into the register has a significant advantage when the EMB innovators are faced with a copycat product. The current pendency of patent applications in the European Patent Office means that the EMB company might have to tolerate an infringement for some time before grant of the patent—and then possibly wait for an opposition to the grant to be resolved. Similar delays are occurring in the other major patent offices.
5.28
Venture-backed companies, such as our hypothetical EMB company, are dependent on external financing and finding an outlet for their products. A wait of an additional few years until the patent is granted can be disastrous for the company that is burning through its funds. An external investor is unlikely to continue funding the company if copycat products begin to emerge and take the market.
Infringement/Speed
The counterplan solves faster than the plan and deters infringement – Germany proves
Harrison 23 [Robert, founding partner of SONNENBERG HARRISON. Patent and trademark attorney focused on semiconductors, chemical engineering, computer science, photonics, telecommunications, microtechnology and biophysics, “Patents and Utility Models,” chapter in book Overlapping Intellectual Property Rights, Second Edition, edited by Neil Wilkof, Shamnad Basheer, and Irene Calboli,
https://doi.org/10.1093/oso/9780192844477.001.0001, pg. Lexis, ALB]
F. Examination
5.23
One of the attractions of the utility model, common to almost all local variations of the system, is that utility models are not examined on filing, except for possibly procedural requirements.33 This often results in acceptance and registration of the utility model in a very short period of time, since no search and examination for novelty and/or obviousness is carried out. It is, for example, possible to obtain protection for an invention in Germany within six to eight weeks of filing. Publication follows shortly thereafter. For smaller companies, such as the EMB innovators, this can be significant. The costs associated with the detailed substantive examination of a patent application are avoided and a nominally enforceable intellectual property right is quickly obtained. In addition, the early publication of the utility model establishes prior art, which will hinder the filing of applications for similar ideas.
5.24
This quick registration can be great. For potential infringers, however, it is a nightmare. How does one assess the validity of the (unexamined) utility model? The main claim can be extremely broad and there might be relevant prior art, but this has not been reviewed by the patent office. The utility model is an enforceable right—meaning that its proprietor could go to court and get an injunction.
A2 TRIPS Deficit
TRIPS permits the CP
Janis 23 [Mark D., Robert A. Lucas Chair in Law, Director, Center for Intellectual Property School of Law, Indiana Univresity Maurer School of Law, “Interfaces in Plant Intellectual Property,” chapter in book Overlapping Intellectual Property Rights, Second Edition, edited by Neil Wilkof, Shamnad Basheer, and Irene Calboli, https://doi.org/10.1093/oso/9780192844477.001.0001, pg. Lexis, ALB]
Accordingly, as it concerns the patent/PVP interface, TRIPS is neutral as to the intellectual property interface strategies listed above. TRIPS Article 27(3)(b) permits WTO member states to impose subject-matter limitations or election requirements. Significantly, however, TRIPS does not require them to do so, instead permitting member states to use ‘any combination’ of protections.26 Although the most obvious combination is patent protection (under a utility patent regime, a plant patent regime, or both) and UPOV-compliant plant variety protection, the TRIPS agreement does not explicitly reference the UPOV agreement. Member states are free to design their own non-UPOV sui generis protection systems to operate exclusively or as part of a combination of intellectual property protections for plants, as long as the sui generis system is ‘effective’.27 Indeed, the freedom permitted by Article 27(3)(b) is such that additional forms of intellectual property protection for traditional knowledge would be permissible as components of a ‘combination’ of intellectual property protections available for plants.28 As a practical matter, it seems likely that UPOV systems will serve as the primary frame of reference for sui generis plant IP protection in the near term, but the freedom that Article 27(3)(b) permits is largely unconstrained.29
The counterplan causes massive court clog and inconsistent enforcement – EU proves
Band and Butler 23 [Jonathan, J.D. Yale Law School, intellectual property lawyer who helped draft the Digital Millennium Copyright Act (DMCA) and the Stop Online Piracy Act (SOPA), and Brandon, director of intellectual property and licensing at the University of Virginia and lawyer, "Overlapping Forms of Protection for Databases," chapter in book Overlapping Intellectual Property Rights, Second Edition, edited by Neil Wilkof, Shamnad Basheer, and Irene Calboli, https://doi.org/10.1093/oso/9780192844477.001.0001, pg. Lexis, ALB]
(a) Litigation concerning the sui generis right
10.29
Adoption of the European Database Directive led to widespread litigation across Europe, with inconsistent results.
10.30
For example, a Danish court ruled that a search engine’s repeated scouring of newspapers’ websites in order to compile lists of headlines and links violated Denmark’s implementation of the Directive.19 But, in similar cases in Germany 20 and the Netherlands,21 the courts reached a different result. However, another court in the Netherlands prohibited a search engine from extracting information from a company’s online telephone directory.22
10.31
Likewise, there was protracted litigation throughout the EU that hinged upon whether the company that developed the original database had invested sufficient resources to qualify for the protection. The Dutch courts generally withheld protection from databas

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