Journal of World Intellectual Property最新文献

{"title":"Data exclusivity and patent monopoly extension: A view from Australia","authors":"Teddy Henriksen,&nbsp;Simone Henriksen","doi":"10.1111/jwip.12302","DOIUrl":"10.1111/jwip.12302","url":null,"abstract":"<p>Data exclusivity and patents are important to the pharmaceutical industry, and both these regimes coexist in the pharmaceutical landscape. Both data exclusivity and patents provide market exclusivity through monopoly periods. Because data exclusivity and patents can protect the same pharmaceutical, beginning at different times in the pharmaceutical lifecycle and having different durations, these terms may not coincide, and each can extend the effective market exclusivity period of the other. For example, when data exclusivity persists beyond patent expiry for a pharmaceutical, subsequent entrant access to the market is restricted and the period during which originators can charge high prices is extended. This article seeks to eliminate the situation where patent monopolies have expired, but data exclusivity remains in force by proposing a method to ensure that data exclusivity and patent terms expire simultaneously. Further, the proposal maintains the protection to innovators afforded by both data exclusivity and patents, recognising that these regimes protect different things in pharmaceutical development.</p>","PeriodicalId":54129,"journal":{"name":"Journal of World Intellectual Property","volume":"27 2","pages":"314-338"},"PeriodicalIF":0.7,"publicationDate":"2024-04-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://onlinelibrary.wiley.com/doi/epdf/10.1111/jwip.12302","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140665631","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"OA","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Rethinking copyright exceptions in the era of generative AI: Balancing innovation and intellectual property protection","authors":"Saliltorn Thongmeensuk","doi":"10.1111/jwip.12301","DOIUrl":"10.1111/jwip.12301","url":null,"abstract":"<p>Generative artificial intelligence (AI) systems, together with text and data mining (TDM), introduce complex challenges at the junction of data utilization and copyright laws. The inherent reliance of AI on large quantities of data, often encompassing copyrighted materials, results in multifaceted legal quandaries. Issues surface from the unfeasible task of securing permission from each copyright holder for AI training, further muddled by ambiguities in interpreting copyright laws and fair use provisions. Adding to the conundrum, the clandestine practices of data collection in proprietary AI systems obstruct copyright owners from detecting unauthorized use of their materials. The paper explores the exceptions to copyright laws for TDM in the European Union, the United Kingdom, and Japan, recognizing their crucial role in fostering AI development. The EU has a two-pronged approach under the Directive on Copyright in the Digital Single Market, with one exception catering specifically to research organizations, and another, more generalized one, that can be restricted by rightsholders. The UK allows noncommercial TDM research without infringement but rejected a broader copyright exception due to concerns from the creative sector. Japan has the broadest TDM exception globally, permitting the nonenjoyment use of works without permission, though this can potentially overlook the rights of copyright owners. Notably, the applicability of TDM exceptions to AI-produced copies remains unclear, creating potential legal challenges. Furthermore, an exploration of the fair use doctrine in the United States provides insight into its potential application in AI development. It focuses on the transformative aspect of usage and its impact on the original work's potential market. This exploration underscores the necessity for clear, practical guidelines. In response to these identified challenges, this paper proposes a hybrid model for TDM exceptions emerges, along with recommended specific mechanisms. The model divides exceptions into noncommercial and commercial uses, providing a nuanced solution to complex copyright issues in AI training. Recommendations incorporate mandatory exceptions for noncommercial uses, an opt-out clause for commercial uses, enhanced transparency measures, and a searchable portal for copyright owners. In conclusion, striking a delicate equilibrium between technological progress and the incentive for creative expression is of paramount importance. These suggested solutions aim to establish a harmonious foundation that nurtures innovation and creativity while honoring creators' rights, facilitating AI development, promoting transparency, and ensuring fair compensation for creators.</p>","PeriodicalId":54129,"journal":{"name":"Journal of World Intellectual Property","volume":"27 2","pages":"278-295"},"PeriodicalIF":0.7,"publicationDate":"2024-04-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140682952","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"TRIPS-PLUS provisions in the economic partnership agreements with the EU: The CARIFORUM's experience and lessons for West Africa","authors":"Juliet A. Ogbodo","doi":"10.1111/jwip.12299","DOIUrl":"10.1111/jwip.12299","url":null,"abstract":"<p>Negotiation for the Economic Partnership Agreement (EPA) between the European Union (EU) and six African, Caribbean and Pacific (APC) regions has been ongoing for over a decade. These negotiations are at different phases in the seven APC regions and have faced significant challenges, hindering ratification in most of them. However, the Caribbean Forum (CARIFORUM) is the first regional group to have completed the process. It is currently implementing the EPA. Most significantly, CARIFORUM is the only region to have negotiated and ratified a comprehensive EPA that goes beyond trade in goods to include other elements such as services and intellectual property. This paper seeks to understand why CARIFORUM opted for a comprehensive EPA with the EU. Keeping in mind the downsides of intellectual property (IP) globalization, it fleshes out lessons, particularly on IP rights, that West African countries, and other non-Caribbean ACP regions, can draw from the CARIFORUM's experience to adequately equip themselves in anticipation of negotiations with the EU for their EPAs.</p>","PeriodicalId":54129,"journal":{"name":"Journal of World Intellectual Property","volume":"27 2","pages":"257-277"},"PeriodicalIF":0.7,"publicationDate":"2024-04-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://onlinelibrary.wiley.com/doi/epdf/10.1111/jwip.12299","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140753361","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"OA","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Patents Māori Advisory Committee of Aotearoa New Zealand: Lessons for indigenous knowledge protection","authors":"Evana Wright,&nbsp;Daniel Robinson","doi":"10.1111/jwip.12295","DOIUrl":"10.1111/jwip.12295","url":null,"abstract":"<p>Using freedom of information requests, we examine the operation of the Patents Māori Advisory Committee of Aotearoa New Zealand. The Committee advises the Intellectual Property Office of New Zealand on whether inventions claimed in a patent application are derived from Māori traditional knowledge or from indigenous plants or animals; and if so, whether the commercial exploitation of that invention is likely to be contrary to Māori values. There is limited publicly available information on the operations of the Committee and the decision-making process undertaken in reviewing applications. The requests and our searches identified 13 patents referred to the Committee, of which most (9 of 13) dealt with inventions related to Mānuka (<i>Leptospermum scoparium</i>), a taonga species known for its role in producing unique honey. Only two applications have been found to be contrary to Māori values, and these applications have both since been abandoned. The review of applications found to be ‘not contrary to Māori values’ is instructive, identifying important considerations taken into account by the Committee in reaching a decision, including the importance of benefit sharing and engagement with Māori in considering whether an invention may be contrary to Māori values. The analysis highlights the limitations of the Committee in reviewing only those applications filed in Aotearoa New Zealand and referred to the Committee for advice and identifies the importance of mechanisms such as disclosure of origin to ensure all relevant applications are reviewed by the Committee. The paper concludes by highlighting how the operation of the Committee may inform the development of similar bodies in other jurisdictions, such as Australia.</p>","PeriodicalId":54129,"journal":{"name":"Journal of World Intellectual Property","volume":"27 2","pages":"222-241"},"PeriodicalIF":0.7,"publicationDate":"2024-03-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://onlinelibrary.wiley.com/doi/epdf/10.1111/jwip.12295","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140372096","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"OA","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Summary survey on publishing contract in the OAPI space","authors":"Yvon Laurier Ngombé","doi":"10.1111/jwip.12298","DOIUrl":"10.1111/jwip.12298","url":null,"abstract":"<p>The OAPI member states constitute a space for the harmonization of copyright in Africa. This harmonization is yet to be completed, as attested by the conventional rules relating to the publishing contract. In addition, investigating about the publishing contract in the OAPI space requires an examination of both the text of the Bangui Agreement and that of the national laws of the 17 member states. Some differences must be pointed out keeping in mind the question of possible conflict of laws.</p>","PeriodicalId":54129,"journal":{"name":"Journal of World Intellectual Property","volume":"27 2","pages":"242-256"},"PeriodicalIF":0.7,"publicationDate":"2024-03-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://onlinelibrary.wiley.com/doi/epdf/10.1111/jwip.12298","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140371066","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"OA","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"To be, or not to be? Copyright general monitoring dilemma of online hosting audio-visual platforms in China","authors":"Yue Lu","doi":"10.1111/jwip.12296","DOIUrl":"https://doi.org/10.1111/jwip.12296","url":null,"abstract":"<p>In China, a hosting audio-visual platform does not bear a copyright general monitoring obligation. It bears a public law obligation to monitor content proactively and constantly to safeguard the governance objective of cybersecurity. Little literature has discovered that Chinese case law has shown a risk that this public law obligation can impose an actual copyright general monitoring obligation upon platforms. The crux lies in that the public law obligation weakens the rationale of the copyright no monitoring obligation that a platform cannot access and assess each piece of work proactively. Copyright general monitoring seems to be workable as a platform is given such an opportunity to access and evaluate each content upon the fulfillment of the public law obligation. It, however, is unjustifiable to create this copyright law obligation by transferring it from the public law obligation, as copyright monitoring is much more complicated and costly within China's online environment. Access to content does not necessarily indicate a platform's ability to figure out content's copyright authorization status. China should retain adopting the no copyright general monitoring obligation even considering that the public law obligation has been contextually emphasized as a mandatory obligation to platforms.</p>","PeriodicalId":54129,"journal":{"name":"Journal of World Intellectual Property","volume":"27 2","pages":"199-221"},"PeriodicalIF":0.7,"publicationDate":"2024-03-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141624390","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Enthusiastic claimants, reluctant courts: The empirical and critical analysis of punitive damages in Chinese intellectual property law","authors":"Baiyang Xiao","doi":"10.1111/jwip.12297","DOIUrl":"10.1111/jwip.12297","url":null,"abstract":"<p>The availability of punitive awards varies across different common law jurisdictions. In recent years, China, as a civil law jurisdiction, has progressively introduced a comprehensive punitive damages system in Intellectual Property (IP) law in recent years. To investigate how this common law product functions in the civil law system, this paper scrutinizes the evolution and functions of punitive damages and depicts the map of punitive damages in Chinese IP law. Then this paper reports and analyses 657 IP judgments involving the application of punitive damages that were tried and decided in all parts of mainland China by all levels of courts from June 1, 2021, to May 31, 2022. Our empirical data shows that punitive damages are frequently sought by claimants, yet courts are reluctant to award them due to the complexities in determining the basis for calculation and judges' reluctance towards detailed legal reasoning. Furthermore, a critical analysis of the application of punitive damages in IP trials is provided, critiquing the court's preference for statutory damages, the complexity in determining the basis and multipliers for calculation, and the strict standard of proof, which accounted for the small portion of punitive damages awarded in judicial practices.</p>","PeriodicalId":54129,"journal":{"name":"Journal of World Intellectual Property","volume":"27 2","pages":"175-198"},"PeriodicalIF":0.7,"publicationDate":"2024-03-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://onlinelibrary.wiley.com/doi/epdf/10.1111/jwip.12297","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140212173","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"OA","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Human to machine innovation: Does legal personhood and inventorship threshold offer any leeway?","authors":"Ezinne Mirian Igbokwe","doi":"10.1111/jwip.12294","DOIUrl":"10.1111/jwip.12294","url":null,"abstract":"<p>Artificial Intelligence (AI) continues to be a powerful tool in the research and development ecosystem. AI computers are invented to assist human invention and also created to invent. Where an AI is created to invent, through self-learning, they can interact with set of data presumably created by humans and as a result, a new patentable invention(s) can emerge. However, where the AI inventors and the resulting inventions sit within the inventorship legal framework, and the theory of legal personhood continues to raise legal and policy questions that challenge some underlying or presumed settled intellectual property law assumptions. One of the contentions has been the implications of the AI machine's autonomous inventions on the legislative and judicially established threshold for patent inventorship and the jurisprudential theory of legal personhood. The judicial decisions in the United States of America (USA), United Kingdom (UK), and Australia in the Device for the Autonomous Bootstrapping of Unified Sentience (DABUS) patent applications have given judicial certainty on whether AI machine inventors qualify as inventors. However, they also reawakened the debate about the need to sustain patent incentives for AI innovations. This article draws from the inventorship threshold in the UK and US following the court decisions in the DABUS cases. The judicial decisions of courts and the administrative judgements of national Intellectual Property Offices (IPOs) relating to inventorship as well as the theory of legal personhood, reveal that an AI machine invention can be patent eligible. However, the machine does not satisfy the inventorship criteria and consequently is incapable of being named an inventor. On the other hand, the inventorship requirement of contemporaneous conception and reduction to practice meant that an AI owner/programmer may not satisfy the requirement of inventorship, even though he/she programmed the inventing machine. These decisions and judgements favour an implied situation where autonomous AI inventions could be without named inventors and owners. Consequently, those inventions will automatically form part of prior arts thereby rendering myriads of future human and AI inventions obvious or already existing in the public domain. In contributing to the discourse, this article advances the argument that to optimise the patent system, national IPOs and the courts can rely on ‘simultaneous conception and reduction to practice’ to recognise the programmer/owner or other relevant stakeholders in AI innovation as the inventor of AI autonomous inventions.</p>","PeriodicalId":54129,"journal":{"name":"Journal of World Intellectual Property","volume":"27 2","pages":"149-174"},"PeriodicalIF":0.7,"publicationDate":"2024-01-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://onlinelibrary.wiley.com/doi/epdf/10.1111/jwip.12294","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139599665","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"OA","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The dynamic development of intellectual property right: Innovation diffusion and evolutionary game—A perspective on patent evolution","authors":"Hua Xue","doi":"10.1111/jwip.12291","DOIUrl":"https://doi.org/10.1111/jwip.12291","url":null,"abstract":"<p>The birth of intellectual property right (IPR) is accompanied by the emergence of scientific and technological revolution, and is deeply influenced by continuous advancement of science and technology. Meanwhile, the emergence of new technology will inevitably undergo a process of development, game, evolution or even extinction. As an important proxy of IPR, patents play a crucial role in indicating the evolution of IPR. Therefore, this paper focuses on the S-type diffusion and evolutionary game process of IPR, and reveals the main influencing factors of this dynamic evolution process by constructing a bionic evolution system of IPR development through empirical research combined with data analysis methods. This research can promote a deeper understanding of both the formation and the future developmental logic of IPR for the academic community, and will provide new research ideas for improving the theoretical system of IPR. Moreover, this can provide some new solutions to the operation of IPR system and the practice of strategic promotion in a new round of scientific and technological revolution under the new normal.</p>","PeriodicalId":54129,"journal":{"name":"Journal of World Intellectual Property","volume":"27 2","pages":"131-148"},"PeriodicalIF":0.7,"publicationDate":"2023-11-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141624355","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Patents and unjustified threats—Legal solutions in Australia","authors":"Evgeny Guglyuvatyy,&nbsp;Natalie Stoianoff,&nbsp;Shanti Das","doi":"10.1111/jwip.12293","DOIUrl":"https://doi.org/10.1111/jwip.12293","url":null,"abstract":"<p>While intellectual property laws protect rights holders from infringement of their intellectual property, these laws also protect against abuse of those rights where rights holders unjustifiably threaten competitors with infringement proceedings. The introduction of additional damages for flagrant unjustified threats under the recent <i>Intellectual Property Laws Amendment (Productivity Commission Response Part 1 and Other Measures) Act 2018 (Cth)</i> may benefit an alleged infringer who is not found to have infringed a valid patent. In particular, new section 128(1A) to the Patents Act 1990 allows additional damages to be awarded against a person for making blatant unjustified threats of infringing a patent. In cases where it is difficult to determine the loss and ordinary damages cannot be awarded, a court could award a nominal amount in compensation, but the difficulty lies in whether, in some cases, damages can be awarded at all. This raises the need to consider other legal avenues to address the issue of unjustified threats relating to patented inventions. In this paper we have identified four such other legal avenues being: specific provisions of the Australian Consumer Law; the misuse of market power provisions in s 46 <i>Competition and Consumer Act 2010</i> (Cth); the duty of care and diligence in s 180 <i>Corporations Act 2001</i> (Cth); and the law of joint tortfeasorship. Each of these potential legal solutions will be examined in turn however a comparison of remedies, or interactions with the laws of evidence, and exploration of costs are beyond the scope of this analysis. Further while we acknowledge that other Australian legislation provides a cause of action arising from the making of unjustifiable threats, such as in the <i>Copyright Act 1968</i>, the <i>Trade Marks Act 1995</i>, the <i>Designs Act 2003</i> and the <i>Circuit Layouts Act 1986</i>, this paper is focused on the <i>Patents Act 1990</i> only.</p>","PeriodicalId":54129,"journal":{"name":"Journal of World Intellectual Property","volume":"27 2","pages":"112-130"},"PeriodicalIF":0.7,"publicationDate":"2023-11-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://onlinelibrary.wiley.com/doi/epdf/10.1111/jwip.12293","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141624358","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"OA","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}