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Patents and Innovations for Growth and Welfare
The aim of this ending chapter is to present a structured summary of the previous chapters and tie them together through lingering on some cross-chapter themes and contributions in view of the aims of the book. Some of the main themes in this book at macro-level will moreover be tied into a previous book of mine 20 years back (as of April 2018) on the rise of intellectual capitalism and the economics and management of IP at micro-level. The chapter will end with a final plea for transnational technology and innovation governance in light of the crucial roles of new technologies and innovations and for global challenges and welfare. The general aim of this book has been to present a research-based analysis of the linkages between R & D, patents, innovations, growth and welfare and thereby increase our knowledge about how R & D of new technologies and innovations can contribute to growth and ultimately to welfare in society. A corollary aim has then been to focus specifically on patents and their linkages since patent and IP issues have been somewhat disconnected in general from R & D, innovations and economic growth in studies and debate of the latter. A subsidiary aim has been to clarify and offer a number of key concepts, distinctions and models in an attempt to contribute to a professional language in the innovation policy and management area. A final aim of the book has been to contribute to research in the innovation and IP area by offering some answers to common research questions as well as offering methods and suggestions for further IP policy research.
The emergence of China’s indigenous standards has raised concerns within the trade community. Focusing on the compatibility of such Chinese-made standards with the WTO laws, existing legal literature seem to see China’s indigenous standards as being oriented towards ‘techno-nationalism’, thereby posing a credible threat to international economic order. By revisiting the case of the WAPI, one of the most (in)famous Chinese indigenous standards in the information and communication technology (ICT) industry, this chapter contends that the threat of China’s indigenous standards policy to the global trading system may be less serious than some had thought because of the contextual factors and new rules introduced through trade and investment laws in the era of megaregionalism.
Although WTO law has foreclosed the use of traditional industrial policy instruments for technology exports, this chapter argues that a new set of instruments are emerging as vital to the competition between countries for technology-related global value chains. It highlights three such instruments: export policies, technology transfer policies, and investment reviews. Together, these tools are influencing the contours of competition between firms along value chains. This chapter then examines how mega-RTAs and other treaties seek to further discipline the use of such instruments, suggesting that further law is likely to develop to constrain government action regardless of whether mega-RTAs come to fruition.
Free trade negotiations oftentimes raise concerns over food and product safety. The issue arises as to whether a new agreement involves provisions that require parties to adopt laxer criteria in their national laws, standards, or labelling requirements related to food and product safety. For instance, in Japan, consumers were concerned that Japan’s food additive regulation or genetically modified organisms (GMOs) labelling requirements might be changed in response to the US demands during the TPP negotiations. Such consumers’ concerns were also a sensitive issue for the government of Japan before the negotiations and after the conclusion. This chapter analyzes the TPP provisions relating to food and product safety. Primarily, the TPP’s Chapters on Technical Barriers to Trade (TBT) and Sanitary and Phytosanitary Measures (SPS) are concerned with such topics. Previous Free Trade Agreements also contain TBT/SPS Chapters. Whether these Chapters include any WTO-plus provision has been examined by researchers. At the same time, the TPP Agreement includes specific product provisions, relating to products such as GMOs, used and remanufactured goods, motor vehicles, cosmetics, organic products, or food additives, in other parts of the Agreement (the Market Access Chapter, Chapter Annexes, or bilateral side-letters). These various product-specific provisions are a unique characteristic of the TPP Agreement, reflecting trade interests and concerns of exporting parties. This chapter also addresses these specific provisions, as well as the TBT/SPS Chapters, and analyzes how the provisions affect food and product safety of the TPP parties. The chapter concludes that the product-specific provisions, as well as the TBT/SPS Chapters, do not impact national safety standards substantively. Rather, these provisions encourage and promote cooperation, the exchange of information, and transparency of national measures.
Rolf H. Weber
The creation of a digital single market is an important objective of the European Union (EU), as can be seen in the ‘Digital Single Market Strategy for Europe’ (‘DSM Strategy’), presented by the European Commission on 6 May 2015. The main aim of the DSM Strategy consists in the strengthening of the digital ecosystem. Therefore, the Commission proposes putting more emphasis on a ‘free flow of information and of data’; such a concept should remove cross-border restrictions on international data transfers. In the meantime, the Commission submitted several legislative proposals, for example, on the sale and purchase of digital content, on copyright issues in the digital era, and on the rights and obligations of Internet platform intermediaries. In addition, a working document on the collaborative economy is available for discussion. These initiatives must be partly seen in the context of rising difficulties with global and regional agreements governing international (digital) trade. The potential success of the plurilateral Trade in Services Agreement (TiSA) of the WTO appears to be more than doubtful, not only due to political changes in national governments but also due to the increasing opposition from nongovernmental organizations and civil society. The same holds true for the EU/US project of the TTIP. The only agreement having finally a chance to be adopted seems to be the EU/Canada CETA. Apart from these more political difficulties with a proper implementation of international digital trade rules, the EU General Data Protection Regulation, having been endorsed in Spring 2016, is another important potential stumbling block for the objective of ‘free flow of information and data’. This objective can come into conflict with the data protection principles if the recipient country does not provide an equal level of data protection. The respective tensions have not been addressed in the DSM Strategy but should be dealt with in further EU Communications in 2017. Nevertheless, the lack of data protection/security standards and of compliance procedures with fundamental rights in some countries is an intensively debated topic that merits to be discussed in more depth.
Shin-yi Peng, Han-Wei Liu and Ching-Fu Lin
This chapter will explore the interplay between law and technology, focusing on the pertinent trade issues within megaregionals. As globalization has created markets that cross borders, there is an increasing reliance on diverse types of international legal instruments to govern science and technology. The reality is that the differences in regulatory regimes become more significant as trade obstacles. Manufacturers or service suppliers often confront challenges when attempting to comply with diverse national regulatory measures. At the forefront, the questions to ask are whether the emergence of various bilateral or megaregionals help promote regulatory cooperation/coherence? Or, has such phenomenon raised more questions than it has answered in terms of regulatory divergence? What mechanisms do the multilateral, plurilateral, or bilateral economic integration arrangements design to reduce regulatory divergence? We will engage in a critical review on pertinent law-making and jurisprudence to offer a systematic examination on regulatory convergence of technology law.
Regulatory Divergence and Convergence in the Age of Megaregionals
Edited by Shin-yi Peng, Han-Wei Liu and Ching-Fu Lin
This chapter will analyze common pharmaceutical patent law provisions appearing in recent free trade agreements with a view to distilling the main purpose and effect of those provisions. The call for coherence between regulations in differing countries encompasses intellectual property laws and potentially impacts health policy, including access to medicines. The trend is clearly to both maximalist standards and harmonization of regulations. Existing literature is extensive on the types of ‘TRIPS-plus’ measures being incorporated into free trade agreements. This chapter will not simply decry this trend but instead makes the more nuanced argument that while harmonization can potentially yield benefits there are dangers to harmonization/regulatory coherence in the area of pharmaceutical patents. In some cases, harmonization will help efficiency and effectiveness but in other instances such standards tend to ignore context and result in inappropriate and misplaced rules. In the main, the chapter argues regulations which increase normative standards should be carefully tailored to the specific context of the country at issue while harmonization of practical standards could reduce costs and increase efficiencies in the public health system.