Presentations

Session on the TRIPS Agreement in the light of preferential trade and investment agreements

At “The Changing Global Innovation and Intellectual Property Policy Landscape: Present Challenges and Future Directions (II): TRIPS at 20 and beyond”
Organized by the International Centre for Trade and Sustainable Development (ICTSD), October 30-31, 2014, WTO Headquarters, Geneva, Switzerland
Text posted - file below

Introduction

When I was asked to address the subject of the impact of preferential trading agreements, and particularly free trade agreements (FTAs), on public health within the context of the TRIPS Agreement, the movie “Groundhog Day”, with Bill Murray and Andie McDowell, came to mind. I am sure you will all recall this film in which the flawed protagonist, Bill Murray, wakes up at the same time day after day to find that it is the beginning of the same day. That is the general sense I have about the subject of public health and FTAs. In the movie, while repeating the same day, Bill Murray learns, adapts, and improves himself in order to win the affections of his romantic interest, Andie McDowell, and he eventually succeeds. In the movies, not surprisingly, there is a happy ending. It is not so clear in the real world of public health and FTAs what will be the result. We may be learning and adapting, or we may be repeatedly beating our heads against the same wall.

Prepared for International Trade in Electricity and the Greening Economy
World Trade Forum, World Trade Institute, 26-27 September 2014
Paper as delivered September 27, 2014; to be revised for publication in 2014 World Trade Forum volume by Cambridge University Press

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Abstract

The prospects for creation of a global clean electricity grid (GCEG) must address two major elements: first, clean electricity generation, and second, the establishment of a global grid through and across which electricity may be shared. There have been a number of significant studies of the potential for technology transfer to facilitate clean energy generation, including identification of potential patent obstacles.  Some of those studies have taken into account the technologies that may be important to creating “smart grids” for energy distribution, including identification of intellectual property issues involving computer software that may be associated with that.  This author is not so far aware of research studies specifically concerning technology transfer issues in connection with the creation of a GCEG. That is, what aspects of technology transfer may be relevant to global cross-border trade in “green” electricity, whether there are potential obstacles to such trade created by the global system designed to protect rights in intellectual property, and what might be practical mechanisms for facilitating technology transfer?

As to the technologies that may be important for creating an international power grid, and the posited creation of a CGEG, it should be noted that computer software and digital technologies will play an important role, and that patents may not be the only form of IP relevant in this area. While patents are used to protect computer software (with variations among national/regional jurisdictions), software is also and perhaps predominantly protected by copyright, and in certain instances trade secret. Moreover, there are questions arising around “network effects”, for example, and potential widespread adoption of standardized computer networking systems that may be important to a shared grid. Technical standards are likely to play an important role in the integration of systems and networks.

The territorial nature of the international intellectual property system raises some intriguing issues in respect to the potential emergence of a global power grid.

Though the prospect may seem counterintuitive, it may be that the technologies involved in the establishment of cross-border trade in electricity, and a more extensive global electricity grid, will be more subject to concentration than the underlying energy generation assets.

The current global security environment suggests that allowing relatively open access to the technology underlying an energy grid that may address the electricity needs of a substantial number of countries would not be prudent. To the contrary, the potential risks from a security standpoint may argue in favor of a heavily guarded proprietary/secret program to which very few individuals have unrestricted access.

One practical solution for creating a system of global technology sharing is some agreement on mechanisms for establishing joint venture partnerships that takes into account the interests of private sector technology suppliers, private or public sector technology recipients, and the interests of the public in affordable access to the resulting energy products/services. A part of that mechanism might involve the creation of a global patent or broader technology pool to which private enterprise and government research laboratories would agree to transfer relevant technologies, and from which grid operators throughout the global system could draw.

The foregoing discussion views the potential establishment of a GCEG from a global perspective. Most real-world large-scale projects do not start out as multilateral endeavors, but rather through bilateral public and private arrangements that may be extended geographically over time. Just so, transfers of technology directed toward establishing a GCEG might well begin at a more modest level through bilateral and regional electricity sharing agreements and programs.

Presentation at the 2014 Annual Meeting of the

Society for the Advancement of Socio-Economics (SASE)

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Abstract:

The WHO Global Strategy and Plan of Action mandated the Director General to support transfer of technology and local production of medicines in developing countries. This paper briefly lays out the conditions for local production in Africa and describes the on-going work program of the WHO Department of Public Health, Innovation, Intellectual Property and Trade (PHI) directed at supporting local production efforts. Encouragement of local production is not without controversy as governments must weigh their interest in pursuing the potential holistic benefits of security of supply, support for research and training, manufacturing employment and balance of payments improvements, with assuring that supplies are purchased at prices competitive with global lowest-priced supplies of assured quality. Ultimately, for local production efforts to be successful medicines must be provided at prices competitive with, and of comparable quality to, imported products. The African Union and national governments within Africa are promoting local production, and are working with the support of a number of multilateral organizations including UNIDO, UNCTAD, UNAIDS and WHO, with increasing interest of the African Development Bank. There is considerable attention both from local investors and multinational industry, and there are opportunities for technology leapfrogging. From the WHO perspective, the key element is to focus attention on the promotion of public health objectives, including through the strengthening of regulatory capacity. The author is consultant adviser to WHO PHI.

Investment Chapters in Trade Agreements: IP Rights as Protected Investments

Sponsored by the ASIL Intellectual Property Interest Group and the ILA Committee on International Trade Law

Consolidated write-up of F. Abbott, S. Sell & J. Reichman (download below)

PowerPoint of Jerome Reichman (download below)

ASIL Cables Report Link

Investment chapters of trade and investment agreements have attracted renewed attention due to current disputes involving intellectual property rights affecting public health interests. This panel will examine issues that may arise from treating IP rights as protected investments in trade and investment agreements. Should foreign corporations be entitled to demand host country taxpayer compensation by bringing governments before trade and investment arbitration tribunals to challenge domestic court decisions on patents? May government standards regarding intellectual property rights constitute regulatory takings entailing compensation to the intellectual property owner?

Moderator: Frederick M. Abbott, Florida State University College of Law

Speakers:

• James Love, Knowledge Ecology International

• Jerome H. Reichman, Duke University School of Law

• Susan K. Sell, Elliott School of International Affairs, George Washington University

Comment: Gary Horlick, Washington, DC

Organized by the Office of the U.N. High Commissioner for Human Rights (OHCHR)

Session 1: The right to enjoy the benefits of scientific progress and intellectual property rights: conflict or complementarity

Frederick M. Abbott

Prepared Text of Remarks

Frederick M. Abbott

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Distinguished Life Sciences Lecture, University of Basel, May 23, 2013

These are neither the best of times nor the worst of times for the pharmaceutical industry, or for global public health. Media reports regarding recent legal developments would suggest that the originator pharmaceutical industry is facing a new and dangerous threat to its long-term welfare, compounding the impact of the so-called patent cliffs. Governments around the world are facing budgetary shortfalls, and this has put considerable pressure on funding for public health projects, including for procurement of treatments for conditions such as HIV-AIDS.

Yet, both for the pharmaceutical industry and for public health more generally, the underlying reality is perhaps more positive than the headline news often suggests.

Human society has not proven very good at collective problem-solving, including public goods problems. It is easy enough to identify critical needs -- though even, as example in the case of global warming this identification can be politicized -- and, to a certain extent, it is often relatively easy to think about and postulate how human civilization as a whole could best address particular pressing problems. But that is often about the extent of how far we can go. Collective problem-solving at a global level quickly breaks down because of a number of built-in impediments: national sovereignty and public security concerns, inequalities in resource availability, differential needs and demands, existing patterns of ownership of resources and wealth, political outlooks, personality differences, and so on.

Regarding the way forward, first I start from a relatively optimistic premise. I do not see either the Pharma industry or global public health in the midst of a dire crisis. I think a combination of advances in technology and the opening of large new markets is encouraging for the industry, and statistically speaking global public health is trending to improvement.

Second, there is built into the Pharma R&D and distribution model a profound moral dilemma. That is, new and important drugs are developed and priced outside the budget of large parts of the global population. Governments that have a mission to promote and protect the health of their populations cannot realistically be expected to ignore this moral dilemma, and the public will not allow that to happen. This sets up an inevitable and continuing conflict.

Third, the present basis for Pharma reaction to the moral dilemma is to strengthen the legal and diplomatic walls protecting their pricing model. Investor pressure on Pharma executives to pursue this line is understandable in the logic of capital markets. But, it seems questionable that these walls can hold against public pressure over the longer term. They can probably extend the viability of the model, and perhaps for current management of the companies this is all that is important. But, someone should be thinking about the longer-term.

Fourth, governments are reacting to the moral dilemma with compulsory licensing, modifications to patent law, price controls, competition actions, and so forth. This is the control mechanism used to ameliorate the impact of the Pharma model.

We basically have a checks and balances, almost constitutional, system. On one hand, we have private ownership and exploitation of the market. On the other hand, we have governmental intervention supported by NGO involvement to police the market and keep the exploitation in check.

The global system for developing and distributing medicines and vaccines is an enormously complex structure with many moving parts. There are many problems and issues. it is doubtful they can be resolved with a single solution or model that will tackle all of them.

The main point I would like to make today is that the Pharma industry, a good part of it based here in Basel, should be more focused on finding ways to address the fundamental moral dilemma posed by its business model. Whatever legal walls it can build are going to be breached because the alternative is intolerable to governments and the wider public. It is my belief that the Pharma industry could address the moral dilemma without significant adverse impact on its bottom line, if it seriously set out to do that.

Frederick M. Abbott

Harvard Human Rights Journal Symposium

PowerPoint of Presentation

Global Health Law: Innovation, Access and Justice

The Annual Lecture of the LL.M Programme in Global Health Law and International Institutions, Graduate Institute of International Studies, Geneva, Switzerland, October 10, 2012

Audio of remarks by Frederick M. Abbott

IP-Watch Report of Event

Frederick M. Abbott

Presentation to:

Foro Latinoamericano

ALIFAR-ANAFAM

Asociación Latinoamericana de Industrias Farmacéuticas - La Asociación Nacional de Fabricantes de Medicamentos

XXIII Asamblea Anual

Mexico City

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Frederick M. Abbott

Local Production for Access to Medicines – Stakeholder Meeting
World Health Organization, Geneva
February 9, 2012

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