Articles and Studies

Intellectual Property, International Protection Entry in Max Planck Encyclopedia of Public International Law

Author: 

Frederick M. Abbott

Intellectual property, International Protection

VII MAX PLANCK ENCYCLOPEDIA OF PUBLIC INTERNATIONAL LAW 776 (Rüdiger Wolfrum ed.) (Oxford 2012)

Intellectual property rights perform a variety of functions. They promote innovation and creative expression, and they protect investment. The promotion of innovation and protection of investment are important objectives for the global economy. New products and methods for producing them improve the quality of life and enhance productivity. It is important, however, to bear in mind that IPRs protection also imposes social and economic costs.

Emerging Market Pharmaceutical Supply: A Prescription for Sharing the Benefits of Global Information Flow

Author: 

Frederick M. Abbott

in THE GLOBAL FLOW OF INFORMATION: LEGAL, SOCIAL, AND CULTURAL PERSPECTIVE 175-189 (eds. R. Subramanian & E. Katz), New York Univ. Press, 2011

New information technologies enable individuals in disparate locations to conduct cutting-edge research, to move that research into the development and testing of new medicines, to manufacture high-quality products, and to move those products to patients around the world. Conceptually, the world pharmaceuticals supply market may become increasingly competitive at all stages: basic research, product development, manufacturing and distribution. The diffusion of technological competence to major developing country actors in the pharmaceutical sector, such as India and China, as well as to more specialized actors such as Bangladesh (manufacturing) and Singapore (research), could result in a significant expansion of the pool of products available to treat disease, as well as more affordable prices to consumers.

Regional Assessment of Patent and Related Issues and Access to Medicines: Caricom Member States and the Dominican Republic (HERA)

Author: 

Frederick M. Abbott, Ryan Abbott, Wilbert Bannenberg, Marianne Schürmann

Health Research for Action Final Report- Main Report, Vol. 1, 2009

The objectives of this study were: (a) to explore the possibilities of developing a harmonized, pro-public health regional (Caribbean) IP regulation and drug policy (to include generic drugs) framework; (b) to make recommendations on the promulgation/up-dating of IP legislation and regulation that will maximize TRIPS flexibilities while being TRIPS compliant; (c) to identify the requirements and process for establishing a regional negotiating platform for drugs; (d) to identify mechanisms for building/strengthening coalitions and negotiating positions at the WTO, and in bilateral and regional fora for ensuring access to drugs; and (e) to make recommendations on the adequacy of the systems in Member States for regulation of the pharmaceutical market to ensure the timely supply of safe, effective and quality medicines.

Innovation and Technology Transfer to Address Climate Change: Lessons from the Global Debate on Intellectual Property and Public Health

Author: 

Frederick M. Abbott

ICTSD Programme on IPRs and Sustainable Development, Issue Paper No. 24

This paper examines issues surrounding the development and transfer of technologies for addressing the problem of climate change based on the experience of developing countries in addressing problems of innovation and access in the field of medicines.

The Challenges We Face

Author: 

Frederick M. Abbott and Graham Dukes

in Frederick M. Abbott and Graham Dukes, GLOBAL PHARMACEUTICAL POLICY: Ensuring Medicines for Tomorrow's World 1-15 (2009)(Edward Elgar Publishing)

Pharmaceutical products play a central role in the prevention and treatment of disease. Making safe and effective pharmaceutical products available and affordable to individuals around the world is a central challenge to the global governance system. There are however myriad obstacles to achieving and maintaining effective worldwide availability of medicines.

Cross-Retaliation in TRIPS: Options for Developing Countries

Author: 

Frederick M. Abbott

ICTSD Programme on Dispute Settlement and Legal Aspects of International Trade, Issue Paper No. 8, April 2009

This paper addresses a World Trade Organization (WTO) dispute settlement remedy commonly known as 'cross-retaliation', and specifically the mechanism by which a WTO Member can suspend concessions in the field of trade-related intellectual property rights (TRIPS) to redress an injury suffered with respect to trade in goods or services.

Worst Fears Realised: The Dutch Confiscation of Medicines Bound from India to Brazil

Author: 

Frederick M. Abbott
 

Seizure of Generic Pharmaceuticals in Transit Based on Allegations of Patent Infringement: A Threat to International Trade, Development and Public Welfare

Author: 

Frederick M. Abbott

1 W.I.P.O.J. 43 (2009)

This essay addresses the legitimacy of seizures by the customs authorities of some European Union member states of pharmaceutical products moving in transit through European ports and airports based on patents in force in the transit countries.

Post-Mortem for the Geneva Mini-Ministerial: Where does TRIPS go from here?

Author: 

Frederick M. Abbott
 

Introductory Note to World Trade Organization Canada First Notice to Manufacture Generic Drug For Export

Author: 

Frederick M. Abbott
  

A New Dominant Trade Species Emerges: Is Bilateralism a Threat?

Author: 

Frederick M. Abbott

Journal of International Economic Law, Vol. 10, No. 3, pp. 571-583, 2007

Over the past decade, government trade and finance ministries have increasingly turned toward negotiating bilateral and regional trading arrangements, and away from negotiations in multilateral forums like the WTO. There are several reasons for this shift, including changes in the global political environment and negotiating obstacles encountered by the multinational business community at the multilateral level.

The Political Economy of the WIPO Development Agenda

Author: 

Frederick M. Abbott

i

Parallel Importation: Economic and Social Welfare Dimensions

Author: 

Frederick M. Abbott

International Institute for Sustainable Development (IISD), Swiss Agency for Development and Cooperation (SDC), June 2007

This paper was prepared at the request of the Swiss Agency for Development and Cooperation for use in dialogue with members of the Swiss Federal Assembly as that legislative body considered proposals to modify Switzerland's law on patents and parallel importation.

World Trade Organization Accession Agreements: Intellectual Property Issues

Author: 

Frederick M. Abbott and Carlos Correa

Quaker United Nations Office Global Economic Issues Publication, May 2007

This paper addresses intellectual property issues that arise in the context of the accession process with a view toward assisting prospective WTO Members involved in negotiations.

Intellectual Property Rights in World Trade

Author: 

Frederick M. Abbott

in Research Handbook in International Economic Law 444-84 (A. Guzman & A. Sykes) (Edward Elgar 2007)

Technology has always played a significant role in economic development and the shifting fortunes of nations. Yet when the GATT was established in 1947, very limited attention was paid to 'intellectual property.' This is largelyexplained by the evolution of an international system for the regulation of intellectual property (IP) under the auspices of what today is known as the World Intellectual Property Organization (WIPO). As a subject of international regulation, intellectual property had not been overlooked. In fact, it was perhaps the first element of world trade subject to truly multilateral discipline with the Paris Convention for the Protection of Industrial Property of 1883 and the Berne Convention for the Protection of Literary and Artistic Work of 1886.

The Doha Round's Public Health Legacy: Strategies for the Production and Diffusion of Patented Medicines Under the Amended TRIPS Provisions

Author: 

Frederick M. Abbott and Jerome H. Reichman

Journal of International Economic Law, Vol. 10, pp. 921-87, 2007

The entry into force of the WTO TRIPS Agreement in 1995 transformed the international intellectual property system. Yet these same harmonized IP standards sharply curtailed the traditional capacity of suppliers of public goods, such as health care and nutrition, to address priority needs of less affluent members of society, particularly in (but not limited to) developing countries. In the Doha Declaration, the Waiver Decision of 30 August 2003 and the Article 31bis Protocol of Amendment, stakeholders concerned with re-opening policy space for the supply of newer pharmaceutical products pushed back against restrictive elements of the TRIPS Agreement. Governments around the world are in the process of deciding whether to ratify and accept the Article 31bis Amendment. Based on their Study for the International Trade Committee of the European Parliament, the authors argue that acceptance of the Amendment will provide a ¿net benefit¿ for countries seeking to improve access to medicines.

China in the WTO 2006: 'Law and its Limitations' in the Context of TRIPS

Author: 

Frederick M. Abbott

in the WTO 2006: 'Law and its Limitations' in the Context of TRIPS (August 30, 2011). WTO LAW AND DEVELOPING COUNTRIES, pp. 59-81, G. Bermann, P. Mavroidis, eds., Cambridge Univ. Press, 2007

China's transition from a statist to market economy over the past 15 years and its successful establishment of globally competitive industry are unprecedented historical events. Although China's entry into the WTO is not responsible for that transformation, it has played an important role. Accession to the WTO was used by the government as a means not only to stabilize access to foreign markets and increase the attractiveness of China to foreign investors but also to reorient internal policies in a way that deemphasized a profound shift in government attitudes.

Comparative Study of Selected Government Policies for Promoting Transfer of Technology and Competitiveness in the Colombian Pharmaceutical Sector

Author: 

Frederick M. Abbott
PowerPoint of Study Presentation - Bogota 2007

United States Agency for International Development - Programa MIDAS, 2007

The overall conclusion of this study is that domestic pharmaceutical producers in Colombia will face increasing challenges from foreign enterprises if and as the market is further opened to competition. If there is a national interest in maintaining or improving the local and global market position of Colombian enterprises, steps should be considered to encourage upgrade of the facilities of private operators to meet standards prevalent among major international generics suppliers. Facilities upgrading would have positive consequences for the Colombian public in terms of improving the quality of products on costs, financial assistance to local firms will be required. Some restructuring of the local industry (in terms of consolidation) should be anticipated.

Patents, Biotechnology and Human Rights: The Preservation of Biodiverse Resources for Future Generations

Author: 

Frederick M. Abbottdownload: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1922851 The patenting of biotechnological inventions potentially affects human rights in a number of ways. Human rights to identity and the practice of religion may be affec

in BIOTECHNOLOGIES AND INTERNATIONAL HUMAN RIGHTS, p. 315, F. Francioni, ed., Hart Publishing, 2007

The patenting of biotechnological inventions potentially affects human rights in a number of ways. Human rights to identity and the practice of religion may be affected by the availability of patents on genetically modified human beings (or elements of the human body). Patents as mechanisms for market exclusion affect access to new medicines, including those based on biotechnological innovation. Access to medicines and health care are part of the panoply of human rights.

Trips II, Asia and the Mercantile Pharmaceutical War: Implications for Innovation and Access

Author: 

Frederick M. Abbott

Stanford Center for International Development, Working Paper No. 308, Dec. 2006

A powerful agenda for adoption of high levels of intellectual property protection, including related regulatory protection, is being advanced by the United States (and certain other developed countries) for developing countries, including developing and emerging market countries of Asia. This agenda essentially reflects a TRIPS II exercise, but is largely being carried out in bilateral and regional negotiations, as well as in WTO accession negotiations.

Intellectual Property Provisions of Bilateral and Regional Trade Agreements in Light of U.S. Federal Law

Author: 

Frederick M. Abbott

UNCTAD - ICTSD Project on IPRs and Sustainable Development, Issue Paper No. 12, Feb. 2006

During the past several years, the United States has concluded a substantial number of bilateral and regional free trade agreements (hereinafter “FTAs”), largely with developing countries. Each of those FTAs includes substantial commitments in the field of intellectual property rights (IPRs) and related regulatory matters. These commitments exceed those required by the TRIPS Agreement which establishes minimum substantive standards of protection and enforcement for all WTO Members.

TRIPS and Human Rights: Preliminary Reflections

Author: 

Frederick M. Abbott

in INTERNATIONAL TRADE AND HUMAN RIGHTS: FOUNDATIONS AND CONCEPTUAL ISSUES, p. 145, F. Abbott, C. Breining-Kaufmann & T. Cottier, eds., University of Michigan Press, 2006

We are considering the relationship between human rights and trade-related aspects of intellectual property rights (TRIPS). Intellectual property rights (IPRs) have always reflected a balancing of general public interests and private stakeholder interests, and in this sense IPRs take into account social welfare concerns as well as those of individual inventors and artists. While the balance struck in the TRIPS Agreement is flawed, it is capable of flexible interpretation and amendment. Human rights represent the values for establishing a global constitutional balance between the interests of the public and the private holders of IPRs.

The Cycle of Action and Reaction: Developments and Trends in Intellectual Property and Health

Author: 

Frederick M. Abbott

in NEGOTIATING HEALTH: INTELLECTUAL PROPERTY AND ACCESS TO MEDICINES 27-40 (eds. P. Roffe, G. Tansey and D. Vivas-Eugui), Earthscan (2005)

The wheel of the global medicines supply market is broken, but proposals for fixing it are at very early stages.

The WTO Medicines Decision: The Political Economy of World Pharmaceutical Trade and the Protection of Public Health

Author: 

Frederick M. Abbott

American Journal of International Law, Vol. 99, pp. 317-58, 2005

On August 30, 2003, the member countries of the WTO adopted the Decision on Implementation of Paragraph 6 of the Doha Declaration on the TRIPS Agreement and Public Health. This Decision provides flexibility for the export of pharmaceutical products under compulsory license (which flexibility might otherwise have been limited by the terms of the TRIPS Agreement). This article analyzes negotiating strategies used by developing countries to achieve their objectives regarding the Decision at the WTO.

Compulsory Licensing for Public Health: A Guide and Model Documents for Implementation of the Doha Declaration Paragraph 6 Decision

Author: 

Frederick M. Abbott and Rudolph V. Van Puymbroeck

World Bank Working Paper No. 61 (2005)

The Doha Declaration on the TRIPS Agreement and Public Health (in its Paragraph 6) recognized that developing countries with insufficient or no manufacturing capacity in the pharmaceutical sector could face difficulties in making effective use of compulsory licensing under the TRIPS Agreement. The WTO’s decision of August 30, 2003 set up a system intended to overcome these difficulties. The present work is a guide to the implementation of that system.

Toward a New Era of Objective Assessment in the Field of TRIPS and Variable Geometry for the Preservation of Multilateralism

Author: 

Frederick M. Abbott

Journal of International Economic Law, Vol. 8, No. 1, pp. 77-100, 2005

The TRIPS Agreement emerged from the Uruguay Round negotiations as one of the three pillars of the WTO. This article offers a preliminary assessment of the first ten years under the TRIPS Agreement. Based on that assessment, it makes suggestions for the future.

Preservation and Use of Genetic Resource Assets and the International Patent System

Author: 

Frederick M. Abbott

Study for the Ministry of Foreign Affairs of Norway, Hong Kong Ministerial Revision, March 31, 2005

In 1992 the Convention on Biological Diversity (CBD) was adopted at the Rio Conference. In 1994 the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) was adopted in Marrakech. From the outset, questions were raised as to whether there are conflicts or potential conflicts between the objectives and rules of these two international undertakings.

Intellectual Property Rights: A Concise Guide (Chapter 2), and Intellectual Property Rights: How They Affect Procurement and What Steps Can Be Taken (Annex B)

Author: 

Frederick M. Abbott

in BATTLING HIV/AIDS: A DECISION MAKER’S GUIDE TO THE PROCUREMENT OF MEDICINES AND RELATED SUPPLIES 11-20, 105-29 (ed. Y. Tayler 2004), World Bank

The procurement of HIV/AIDS–related medicines and supplies is directly affected by rights in intellectual property, most notably patents.

Are the Competition Rules in the WTO Trips Agreement Adequate?

Author: 

Frederick M. Abbott

Journal of International Economic Law, Vol. 7, No. 3, pp. 687-703, 2004

In connection with the run-up to the Cancun Ministerial Conference, the author was asked whether there are grounds for recommending amendment of WTO TRIPS Agreement rules addressing competition. The general conclusion of the study is that the TRIPS Agreement in its present form provides substantial discretion to WTO Members in the formulation and application of competition rules regulating intellectual property, and this arrangement serves the best interests of developed and developing countries.

Managing the Hydra: The Herculean Task of Ensuring Access to Essential Medicines

Author: 

Frederick M. Abbott

In INTERNATIONAL PUBLIC GOODS AND TRANSFER OF TECHNOLOGY AFTER TRIPS 393-424 (K. Maskus and J. Reichman eds.)(Cambridge Univ. Press 2005)

The task of ensuring access to essential medicines presents a complex and embedded set of problems that will remain a persistent feature of the international governance landscape for the foreseeable future.

Intellectual Property Rights in Global Trade Framework: IP Trends in Developing Countries

Author: 

Frederick M. Abbott

Proceedings of the Annual Meeting (American Society of International Law), Vol.

The Doha Declaration on the TRIPS Agreement and Public Health and the Contradictory Trend in Bilateral and Regional Free Trade Agreements

Author: 

Frederick M. Abbott

Quaker United Nations Office (Geneva) (QUNO), Occasional Paper No. 14, April 2004

In the Doha Declaration WTO Members committed themselves to implementing and interpreting the TRIPS Agreement to allow full use of its flexibilities, and to promote access to medicines for all. In the Doha Declaration there was an express acknowledgment of the right of Members to grant compulsory licenses on grounds determined by them.

Trade Diplomacy, the Rule of Law and the Problem of Asymmetric Risks in TRIPS

Author: 

Frederick M. Abbott

Quaker United Nations Office (Geneva) (QUNO), Occasional Paper No. 13, September 2003

The WTO has just finished two and one half years of negotiations on the TRIPS Agreement and Public Health, with an additional tranche of negotiations scheduled to commence soon.

Bob Hudec as Chair of the Canada - Generic Pharmaceuticals Panel - The WTO Gets Something Right

Author: 

Frederick M. Abbott
6 Journal of International Economic Law 733-37 (2003)

The Future of IPRs in the Multilateral Trading System

Author: 

Frederick M. Abbott

in TRADING IN KNOWLEDGE 36-44 (eds. C Bellman, G. Dutfield & R.Melédez-Ortiz 2003) (Earthscan)

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