Chapter
Part I Intellectual Property Rights, Innovation and Transfer of ESTs
2 Concepts and Context: IPRs, Innovation and Transfer of ESTs
2.1 Innovation and Transfer of Technology as Part of the Solution to Climate Change
2.2 Describing Innovation and Transfer of Environmentally Sound Technologies
2.2.1 Defining Environmentally Sound Technologies
2.2.2 Describing Technology Transfer
2.2.2.1 Definition of Technology Transfer
2.2.2.2 Channels of Technology Transfer
2.2.2.2.5 Reverse Engineering
2.3 Fundamental Issues in Innovation and Transfer of ESTs
2.3.1 ESTs as ‘‘Global Public Goods’’
2.3.2 Failures in the Markets for Technology and IPRs as a Policy Response
2.3.3 The Concept of IP Rights and Their Justification
2.4 The Global Distribution of Innovation and International Transfer of ESTs: Evidence to Date
2.4.1 Literature Review: Who Owns ESTs and Who Are the Major EST Transferees?
2.4.2 Empirical Study: Global Distribution of Innovation and International Transfer of ESTs
2.4.2.1 High Concentration of EST innovations as Indicated by Patent Filing under PCT
2.4.2.2 The Direction of International Technology Transfer – Which Countries Are Deriving Income from IPRs?
2.4.2.3 The Strengthening of IPRs and the Rise of Revenue Transfer
3 International Legal Framework Governing IPRs, Innovation and Transfer of Technologies, Including ESTs
3.2 The NIEO Approach to Regulate Innovation and Transfer of Technology
3.2.1 The Revision of the Paris Convention
3.2.1.1 Introduction to the Paris Convention
3.2.1.2 The Demand for the Revision of the Paris Convention
3.2.1.3 The Unfinished Negotiations for the Revision
3.2.2 The Unsuccessful Creation of an International Code of Conduct for the Transfer of Technology
3.2.2.1 The Major Characteristics of the Latest Draft
3.2.2.2 The Failure of the Code and Its Implications
3.3 Intellectual Property Rights and Technology Transfer under the TRIPS Agreement
3.3.1 The Emergence of the TRIPS Agreement
3.3.2 Global Minimum IPR Standards and Their Implications
3.3.2.1 Commitments to Global Minimum IPR Standards
3.3.2.2 The Implications of Global Minimum IPR Standards
3.3.3 Technology Transfer-Oriented Provisions of the TRIPS Agreement
3.4 Technology Transfer and Intellectual Property Rights in International Climate Framework
3.4.1 Technology Transfer under the UNFCCC Agreements
3.4.1.1 The Principle of Common but Differentiated Responsibilities
3.4.1.2 EST Transfer Commitments under the UNFCCC
3.4.1.2.1 Developed Parties’ Commitments to EST Transfer
3.4.1.2.2 Conditions for Developing Countries to Fulfil Their Treaty Commitments under Article 4.7
3.4.1.3 The Kyoto Protocol
3.4.1.3.1 The Reaffirmation of the Commitments to Technology Transfer
3.4.1.3.2 Clean Development Mechanism
3.4.1.4 Technology Transfer in the Post-Kyoto Climate Regime
3.4.1.4.1 Bali Action Plan
3.4.1.4.2 Technology Transfer Mechanisms
3.4.1.5 The Adoption of the Paris Agreement
3.4.2 Intellectual Property Rights in the International Climate Change Regime
3.4.2.1 Technology Transfer and IPRs at the 1992 Rio Summit
3.4.2.2 Divergent Proposals or Unilateral Actions on the Road to Copenhagen
3.4.2.2.1 Developing Countries’ Proposals
3.4.2.2.2 Developed Countries’ Response
3.4.2.3 The Copenhagen Negotiations and Afterwards
4 The Effects of Minimum IPR Standards Shaped by TRIPS on Innovation and Transfer of ESTs
4.2 Mandatory Minimum IPR Standards Under TRIPS
4.2.3 Enforcement of IPRs
4.2.4 Controversy over the Effect of Minimum IPR Standards on Technology Transfer
4.3 The Positive Role of Minimum IPR Protection in Facilitating Innovation and Transfer of ESTs
4.3.1 IP Rights as an Enabling Factor for Innovation of ESTs
4.3.1.1 The Incentive Effects of IPRs on Innovation of ESTs
4.3.1.2 The Role of Patent-Induced Information Disclosure in Innovation of ESTs
4.3.2 Strong IP Rights as a Prerequisite for IP Holders to Transfer ESTs
4.3.2.1 IPRs and FDI, Licensing and Trade
4.3.2.2 IPRs as an Important Factor Influencing the Transfer of ESTs
4.4 The Potentially Negative Effects of Strong IPR Protection on Innovation and Transfer of ESTs
4.4.1 The Exclusive Effects of IPRs on Innovation of ESTs
4.4.2 IP Rights and Abusive or Anti-Competitive Practices in EST Transfer
4.4.2.2 High Licensing Fees
4.4.2.3 Refusal to License
4.4.2.4 Other Abusive or Anti-Competitive Practices
Part II Interpreting the TRIPS Agreement for Facilitating Innovation and Transfer of ESTs
5 Rules Governing Treaty Interpretation and the Elements against Which the TRIPS Agreement Should Be Interpreted
5.2 Rules Governing Treaty Interpretation
5.2.1 The Principle of Good Faith
5.2.1.1 The Principle of Effectiveness
5.2.1.2 The Link between Good Faith and Legitimate Expectations
5.2.2 Determining Ordinary Meaning under Article 31
5.2.2.2 ‘‘In the Light of Its Object and Purpose’’
5.2.2.3 ‘‘In Their Context’’
5.2.2.4 ‘‘Elements to Be Considered Together with the Context’’
5.2.2.4.1 Subsequent Agreement
5.2.2.4.2 Subsequent Practice
5.2.2.4.3 Relevant Rules of International Law
5.2.3 Supplementary Means of Interpretation under Article 32
5.3 The Object and Purpose of WTO and TRIPS
5.3.1 The Sustainable Development Objective of the WTO
5.3.1.1 Sustainable Development as an Objective of the WTO
5.3.1.2 The Role of Sustainable Development in Interpreting TRIPS
5.3.2 The Object and Purpose of the TRIPS Agreement
5.3.2.1 Article 7: ‘‘Objectives’’
5.3.2.2 Article 8: ‘‘Principles’’
5.3.2.3 Interpreting the TRIPS Agreement in Light of Its Objectives and Principles
5.4 Contextual Elements for Interpreting the TRIPS Agreement
5.4.1 Subsequent Agreement: The Doha Declaration
5.4.1.1 The Doha Declaration as a Subsequent Agreement under Article 31(3)(a) of the VCLT
5.4.1.2 The Doha Declaration: Its Context and Content
5.4.1.3 The Implications of the Doha Declaration
5.4.2 Relevant Subsequent Practices in the Interpretation of the TRIPS Agreement
5.4.3 Article 4.5 of the UNFCCC as Relevant Rules of International Law
6 Interpreting Patent–Related Flexibilities in the TRIPS Agreement for Facilitating Innovation and Transfer of ESTs
6.2 Patentable Subject Matter Under Article 27
6.2.1 Non-Discrimination (Article 27.1) and ESTs
6.2.1.1 The Principle of Non-Discrimination under Article 27.1
6.2.1.2 ‘‘Non-Discrimination as to the Field of Technology’’ and ESTs
6.2.2 Patent Eligibility Requirements
6.2.2.1 Interpretation of the Patentability Requirements
6.2.2.2 The Relevance of the Patentability Requirements for WTO Members to Facilitate Innovation and Transfer of ESTs
6.2.3 Permissible Exclusions for ESTs?
6.3 Limits to Patent Rights in the TRIPS Agreement
6.3.2 Limited Exceptions to Patent Rights under Article 30
6.3.2.1 Conditions in General
6.3.2.2 Interpretation of the ‘‘Three-Step’’ Test
6.3.2.2.1 The ‘‘Cumulative’’ Structure of the Three-Step Test
6.3.2.2.2 ‘‘Limited’’ Exception
6.3.2.2.3 No Unreasonable Conflict with the Normal Exploitation of the Patent
6.3.2.2.4 Legitimate Interests
6.3.2.3 Examples of Relevant Exceptions under Article 30 for ESTs
6.3.3 Exhaustion of Rights and Parallel Imports
6.3.3.1 Exhaustion of Rights
6.3.3.2 Parallel Imports for Patented ESTs
6.4 Compulsory Licensing under Article 31
6.4.1 The Concept of Compulsory Licensing
6.4.2 Grounds for Granting Compulsory Licences
6.4.2.1 Grounds for Granting Compulsory Licences in General
6.4.2.2 Local Working Requirements and Non-Discrimination under Article 27
6.4.2.3 Enumerated Grounds for Compulsory Licences under Article 31
6.4.3 Conditions for the Grant of Compulsory Licences
6.4.3.1 Procedural Requirements
6.4.3.1.1 Authorisation on its individual merits
6.4.3.1.2 Prior Negotiations with the Right Holder
6.4.3.1.3 Review of the Decisions
6.4.3.2 Substantive Requirements
6.4.3.2.1 Adequate Remuneration
6.4.3.2.2 Limits to the Scope and Duration
6.4.3.2.3 Predominant Supply of the Domestic Market
6.4.4 Compulsory Licensing as a Policy Lever for EST Transfer
6.4.4.1 The Case of Improved Access to Medicine and Compulsory Licences
6.4.4.2 Compulsory Licences for Transfer of ESTs: Feasibilities and Opportunities
6.4.4.3 Compulsory Licences for Transfer of ESTs: Challenges
7 Interpreting Competition-Related Flexibilities in the TRIPS Agreement for Facilitating Innovation and Transfer of ESTs
7.2 Article 8.2: Basic Principle
7.2.1 Scope of Application
7.2.1.1 Abuse of IP Rights
7.2.1.2 Practices That Unreasonably Restrain Trade
7.2.1.3 Practices That Adversely Affect the International Transfer of Technology
7.2.2 The Requirement That Appropriate Measures Be TRIPS-Consistent
7.2.3 Relevance of Article 8.2 for EST Transfer
7.3 Article 40: Control of Anti-Competitive Practices in Contractual Licences
7.3.1 Legal Effects of Article 40.1
7.3.2 Members’ Sovereign Power to Regulate Anti-Competitive Licensing Practices under Article 40.2
7.3.2.1 A Competition Approach to Regulate IPR-Related Abusive or Anti-Competitive Licensing Practices and Conditions
7.3.2.2 Examples of Anti-Competitive Practices
7.3.3 Relevance for EST Transfer
7.4 Article 31(k): Compulsory Licensing as a Remedy to Anti-Competitive Practices
7.4.1 Interpretation of Article 31(k)
7.4.2 Relevance for the Innovation and Transfer of ESTs
8 Conclusions and Recommendations
8.2.1 Global Asymmetries in the Innovation and Transfer of ESTs
8.2.2 The Role of IPRs as a Contentious Issue in International Climate Change Negotiations
8.2.3 The Mixed Effects of Minimum IPR Standards Shaped by TRIPS on Innovation and Transfer of ESTs
8.3 A Balanced and Pro-Competitive Interpretation of the TRIPS Flexibilities
8.3.1 The Methodology of Legal Interpretation
8.3.2 Interpretation of Patent-Related Flexibilities
8.3.3 Interpretation of Competition-Related Flexibilities
8.4 The Insufficiency of Treaty Interpretation and Possible Remedies
8.4.1 Factors Affecting the Sufficiency of Treaty Interpretation
8.4.2 A Doha-Type Declaration on Intellectual Property Rights and Climate Change
8.4.2.1 Potential Elements of the Declaration
8.4.2.2 Potential Challenges and Solutions
8.4.3 International Guidelines for Licensing of IPR-Protected ESTs
8.4.3.1 The Need for International Guidelines for Licensing of IPR-Protected ESTs
8.4.3.2 Potential Elements for Guidelines on Licensing IP-Protected ESTs
8.4.3.3 Potential Benefits and Challenges of the Licensing Guidelines
Working Papers or Policy Briefs
Website and News Articles
Intellectual Property Rights and Climate Change
：Interpreting the TRIPS Agreement for Environmentally Sound Technologies
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