Legal Thinking - Kenya

8th EGA Legal Affairs Forum

Curious Amicus — Fri, 03 Feb 2012 13:42:52 +0000

The European Generics Association will be hosting the 8th EGA Legal Affairs Forum between the 22 and 23 March 2012 in Brussels.

It will feature an interesting programme including:

Recent developments on SPCs:
• SPCs caselaw and legislation update

- The galanthamine and the memantine decisions
- The Medeva and the Georgetown references to the CJEU
- Paediatric extensions: negative term SPCs

• Combination products in the pipeline

- the effect of the Medeva judgment

• Litigating SPCs around Europe – escitalopram case study

- What is the product/active ingredient? Regulatory and litigation strategies

• Roundtable presentations on national escitalopram SPC cases: Germany, France, The Netherlands, Belgium
Maximising legal professional privilege:
• Privilege in litigation in Europe
(General overview, comparing approach in different Member States)
• Privilege and European Commission investigations/patent settlement cases
(The Akzo Nobel case, practical issues arising from investigations – privilege and disclosure, update on the Commission’s investigations into patent settlements)
Patent enforcement in Europe:

Views on the review of Directive 2004/48/EC on the enforcement of IP rights
Views on the changes in the EU patent system: single court and patent with unitary effect
Update on court cases that impact the industry

The Full Programme can be found here and it starts with a welcome buffet lunch sponsored by Bird & Bird.

Traditional Knowledge and Intellectual Property

Curious Amicus — Fri, 03 Feb 2012 11:22:14 +0000

Johanna Gibson’s “Traditional Knowledge and Intellectual Property: Law and Practice” won’t be released by the OUP until July, but at 704 pages, it looks well worth the wait. What will be in it? Topics promised include benefit-sharing, ownership, creation of intellectual property rights, disclosure of origin, coherence and consistency with international intellectual property regimes. For those who already have “Community Resources: Intellectual Property, International Trade and Protection of Traditional Knowledge”, 2005, ISBN: 0754644367, this work promises much.

Johanna Gibson is Herchel Smith Professor of Intellectual Property Law and Director of the Queen Mary Intellectual Property Research Institute (QMIPRI) and many of us will know her past contributions to the excellent IPKat blog (IPKat is a registered Community Trade Mark

Is the Value of Bioprospecting Contracts too low?

Curious Amicus — Wed, 25 Jan 2012 22:01:05 +0000

This is a challenging question indeed, which is addressed in the current issue of The International Journal of Ecological Economics and Statistics (Vol. 26, Issue No.3, 2012) in its special volume titled “Socioeconomics and Management of Bioprospecting“.
The question of “Is the Value of Bioprospecting Contracts Too Low?” is the title of the Markanya and Nunes paper. As they say:

“In this paper we seek to understand better how a biodiversity resource use value in production is determined, and how the real value is obscured by the fact that the resource is largely open access. We attempt to analyse how special arrangements, set on top of a basic framework in which the resource open access is limited in what it can achieve and in the ‘price’ that will emerge from any transaction between the buyers of the rights and the sellers of the rights. The whole volume allows us to read the ideas presented at last October’s CBD conference in Nagoya.”

There is of course a lot more to read:

“This volume is therefore characterized by a selection of papers that address issues such as: incentives for R&D in the economic sectors that use products of bioprospecting; implications of recent legal changes on access to genetic resources on sharing of knowledge; understanding better the nature of partnerships for access and benefit sharing in diverse sectors that use genetic materials; the nature of special agreements for access and benefit sharing and why they result in a low market price for the ‘owners’ of the resources;”Yoy

If not immediately reading the whole text, the abstracts are available at: The International Journal of Ecological Economics and Statistics (Vol. 26, Issue No.3, 2012)

6th Panafrican Workshop on Access to genetic resources and sharing of the benefits (ABS)

Curious Amicus — Tue, 17 Jan 2012 10:27:59 +0000

30th January this year will be a busy day for CBD and ABS workshops. Taking place on the same day are the

APA African Initiative: 6th Panafrican Workshop on Access to genetic resources and sharing of the benefits (ABS), Limbé, Cameroun
and the
SCBD: Sub-Regional Workshop for Central, South and East Africa on Capacity-building for Implementation of the CBD Programme of Work on Protected Areas; Cape Town, South Africa

More details of both these workshops can be had from the Executive Secretariat of COMIFAC (comifac@comifac.org)

Nagoya Protocol – Guinea and Morocco sign

Curious Amicus — Tue, 10 Jan 2012 22:34:08 +0000

The latest signatories to the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biological Diversity (CBD) are Guinea and Morocco on 9 December 2011. The total number of signatories is now 70. The Nagoya Protocol was opened for signature in February 2011. 90 days after deposit of the 50th instrument of ratification, the Nagoya Protocol will enter into force.

Genetic Resources, Equity and International Law.

Curious Amicus — Wed, 04 Jan 2012 11:18:21 +0000

Due to be published on May 31st, 2012 is
Genetic Resources, Equity and International Law by Camena Guneratne.

Dr Guneratne is a Senior Lecturer in the Department of Legal Studies at the Open University of Sri Lanka.

Publisher: Edward Elgar Pub
Language: English
ISBN-10: 0857934945
ISBN-13: 978-0857934949

Santa Claus, Coca-Cola and Trademarks

Curious Amicus — Tue, 20 Dec 2011 08:00:07 +0000

Bradford, in her 2009 paper ‘Trademark Dilution and Emotion’, sheds some unexpected light on the story of the Santa Claus traditionally featured in advertisements for Coca-Cola:

A third example is Coca-Cola, who in the 1930s used illustrations of Santa Claus to persuade consumers to drink its beverage even in cold weather. Not only was Coca Cola ‘free-riding’ off of St Nicholas’ positive emotional associations, it was not even the first company to do it. White Rock Ginger Ale, the brand leader for mineral water and ginger ale, had already used Santa Claus in its advertising for 15 years. Coke’s advertising campaign may have been an attempt to create associations with a more successful beverage company.

Bradford, Laura R., Trademark Dilution and Emotion (January 29, 2009). Berkley Technology Law Journal, Forthcoming; George Mason Law & Economics Research Paper No. 09-08. Available at SSRN: http://ssrn.com/abstract=1334925

Intellectual Property and Biodiversity

dibsmft — Sun, 18 Dec 2011 11:54:18 +0000

Intellectual Property and Biodiversity: Rights to Animal Genetic Resources by Michelangelo Temmerman is to be published on 19th December.
This is a significant resource at 320 pages. This book covers:

the continuing applicability of trademarks, geographical indications, copyright, and trade secrets;

patentability rules and exclusions;

the extension of patent rights over progeny;

the underlying elements deciding on the shape of regulation – innovation, economic development, agriculture, human rights, animal welfare, the conservation of resources, and equal trading conditions;

the meaning of ‘essentially biotechnological processes’;

the legal definitions of ‘morality’ and ‘ordre public’ in the context of animal welfare;

and the future of international patent law in the context of global governance theories.

Intellectual Property and Biodiversity has a detailed investigation of how three major jurisdictions – the European Union, the United States, and Canada – have regulated the matter and highlights unresolved issues in the laws dealing with animal genetic resources.

Contractual Arrangement Regarding Protection of Traditional Knowledge Holders

Curious Amicus — Tue, 13 Dec 2011 19:16:01 +0000

Just possibly you don’t follow all the European Society of International Law (ESIL) Conference Papers.
In that case you would miss this one.
Their paper looks at private contractual arrangements and is worth having a look at.

Abstract:
In the wake of increasingly widespread bio prospecting and commercial use of indigenous knowledge by enterprises and research institutions, a variety of international agreements such as the Convention on Biological Diversity (CBD) (1992), the CBD Bonn Guidelines (2002), the FAO’ International Treaty on Plant and Genetic Resources (2001), the the World Intellectual Property Organization (WIPO) Draft Provisions on Traditional Cultural Expressions/Folklore and Traditional Knowledge (2004) have proposed certain formulas for the protection of traditional knowledge (TK). The existing legal frameworks of TK protection at the international level lack specific instruments for TK protection, and rather constitute a soft law, and some regional and national laws that provide indigenous peoples with property rights over TK are not internationally recognized. There is still no operating binding international agreement that provides effective protective measures. The article argues that in the meanwhile private contractual arrangement constitutes one of the major instruments to protect TK during the bio prospecting process. Nevertheless, whether the contract basis is always workable and equitable remains controversial. The article aims to assess whether a contract model may properly protect indigenous peoples’ traditional knowledge related to genetic resources. It will explore the strength and weakness of using contracts for the protection of TK holders. Among the most significant advantages are the freedom of concluding a contract and its flexibility. Thus, the contract could be of a very flexible instrument, fitting the peculiarities of a particular transaction. On the other hand, the approach has some limitations, such as an imbalance of bargaining powers between contracting parties.

Tsikun, Marina Igorevna, Ni, Kuei-Jung and Shang-Jhy, Liu, A Review on Contractual Arrangement Regarding Protection of Traditional Knowledge Holders (December 7, 2011). European Society of International Law (ESIL) Conference Paper No. 8/2011. Available at SSRN: http://ssrn.com/abstract=1969376

Gene Thieves

Curious Amicus — Fri, 09 Dec 2011 08:20:04 +0000

Susan Watt writes at the Economic and Social Research Council a very readable introduction to the Nagoya Protocol and the looming deadline of February 2012.

The Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization (ABS) to the Convention on Biological Diversity is a supplementary agreement to the Convention on Biological Diversity.

The Nagoya Protocol applies to genetic resources that are covered by the Convention on Biological Diversity (CBD), and to the benefits arising from their utilization. The Nagoya Protocol also covers traditional knowledge (TK) associated with genetic resources that are covered by the CBD and the benefits arising from its utilization.

If you haven’t yet read all 36 articles of the Nagoya Protocol, you can get your teeth into it at http://www.cbd.int/abs/text/