HFSMUN 2013 Study Guide
Dear Delegates,
Director:
Ritika Chauhan
Moderator:
Krish Thakker
Assistant Director:
Sindhuja Desai
On behalf of the chairs of the Legal Committee, I, Ritika
Chauhan, would like to welcome you to our HFSMUN 2013 which
will be held on 19th and 20th July.
The Legal Committee is the sixth committee of the General Assembly
and it is one of the primary forums for the consideration of legal
questions. During the simulation of the Legal Committee, the
Executive Board will comprise of your Moderator Krish Thakker and
Assistant Director Sindhuja Desai.
I am a Science student at Hiranandani Foundation School and
my interests include java, biology, literature and debating. My
previous experiences in MUN have got me awards- Outstanding
delegate in my first MUN and best delegate and best speaker in others.
Your moderator, Krish Thakker is a class XII student at HFS. He is a
skilled and expressive orator, always successful in presenting his
views. Your Assistant Director, Sindhuja Desai, is a class XII science
student at HFS. She is a very cheerful and lively girl but as a delegate,
she is as ferocious as they come.
MUNing is not only about your oratorical skills but also how
you present your point of view and information to the other
delegatesFor the HFSMUN, the Legal Committee will be addressing
the agenda of Intellectual Property Rights. A plethora of problems,
issues and conflicts plague not only the world but also the United
Nations organization.
This has become a matter of major concern because with the
globalization in every field it has become important to protect the
rights of inventors or IP owners and give them credit for their work so
as to encourage further development at world level.
Delegates, we hope you will be well researched and will successfully
tackle the agenda at hand. We look forward to meeting you all at the
HFSMUN 2013.
Yours truly,
Ritika Chauhan
(Director of Legal Committee – HFSMUN 2013)
HFSMUN 2013 Study Guide
Intellectual Property
Intellectual property refers to creations of the mind. It is divided into two
categories:

Industrial property includes patents for inventions, trademarks, industrial
designs, integrated circuits and geographical indications.

Copyright and related rights cover literary and artistic expressions (e.g.
novels, poems, plays, films, music, artistic works and architecture), and the rights
of performing artists in their performances, producers of phonograms in their
recordings, and broadcasters in their radio and television broadcasts.
Intellectual property rights allow the creators – or owners of patents, trademarks or
copyrighted works – to benefit from their own work or investment in a creation.
These rights are outlined in Article 27 of the Universal Declaration of Human
Rights, which provides for the right to benefit from the protection of moral and
material interests resulting from authorship of any scientific, literary or artistic
work.
Mission of WIPO
To promote innovation and creativity for the economic, social and cultural
development of all countries, through a balanced and effective international
intellectual property system.
NEED FOR INTELLECTUAL PROPERTY RIGHTS
First, the progress and well-being of humanity rest on its capacity to create and
invent new works in the areas of technology and culture.
Second, is the inventor’s interests are safe along with legal protection to his
inventions , he will be encouraged to further invest money for betterment of the
society.
Third, the promotion and protection of intellectual property spurs economic
growth, creates new jobs and industries, and enhances the quality and enjoyment of
life.
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Intellectual property rights reward creativity and human endeavor, which fuel the
progress of humankind. Some examples: the multibillion dollar film, recording,
publishing and software industries – which bring pleasure to millions of people
worldwide – would not exist without copyright protection; without the rewards
provided by the patent system, researchers and inventors would have little
incentive to continue producing better and more efficient products for consumers
(for example, the development of vital new pharmaceutical products); and
consumers would have no means to confidently buy products or services without
reliable, international trademark protection and enforcement mechanisms to
discourage counterfeiting and piracy.
The World Intellectual Property Organization (WIPO) is the United
Nations agency dedicated to the use of intellectual property (patents, copyright,
trademarks, designs, etc.) as a means of stimulating innovation and creativity.
They promote the development and use of the international IP system through:
Services – They run systems which make it easier to obtain protection
internationally for patents, trademarks, designs and appellations of origin; and to
resolve IP disputes.
Law - They help develop the international legal IP framework in line with society’s
evolving needs.
Infrastructure - They build collaborative networks and technical platforms to share
knowledge and simplify IP transactions, including free databases and tools for
exchanging information.
Development - They build capacity in the use of IP to support economic
development.
As part of the United Nations system of specialized agencies, WIPO serves as a
forum for its Member States to establish and harmonize rules and practices for the
protection of intellectual property rights. WIPO also services global registration
systems for trademarks, industrial designs and appellations of origin, and a global
filing system for patents. Most industrialized nations have intellectual property
protection systems that are centuries old. Many new and developing countries,
however, are in the process of building up their patent, trademark and copyright
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legal frameworks and systems. With the increasing globalization of trade and rapid
changes in technological innovation, WIPO plays a key role in helping these new
systems to evolve through treaty negotiation, registration, enforcement, legal and
technical assistance and training in various forms.
WIPO generates nearly 90 percent of its annual budget through its widely-used
international registration and filing activities. The remainder comes from
contributions by Member States. WIPO has an annual income of over 300 million
Swiss francs.
Patent: A patent is an exclusive right granted for an invention, which is
a product or a process that provides, in general, a new way of doing something, or
offers a new technical solution to a problem. In order to be patentable, the
invention must fulfill certain conditions.
A patent provides protection for the invention to the owner of the patent. The
protection is granted for a limited period, generally 20 years.
Patent protection means that the invention cannot be commercially made, used,
distributed or sold without the patent owner's consent. These patent rights are
usually enforced in a court, which, in most systems, holds the authority to
stop patent infringement. Conversely, a court can also declare a patent invalid
upon a successful challenge by a third party.
A patent owner has the right to decide who may - or may not - use the patented
invention for the period in which the invention is protected. The patent owner may
give permission to, or license, other parties to use the invention on mutually
agreed terms. The owner may also sell the right to the invention to someone else,
who will then become the new owner of the patent. Once a patent expires, the
protection ends, and an invention enters the public domain, that is, the owner no
longer holds exclusive rights to the invention, which becomes available to
commercial exploitation by others.
Patents provide incentives to individuals by offering them recognition for
their creativity and material reward for their marketable inventions. These
incentives encourage innovation, which assures that the quality of human life is
continuously enhanced.
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An invention must, in general, fulfill the following conditions to be protected by a
patent. It must be of practical use; it must show an element of novelty, that is,
some new characteristic which is not known in the body of existing
knowledge in its technical field. This body of existing knowledge is called " prior
art". The invention must show an inventive step which could not be deduced by a
person with average knowledge of the technical field. Finally, its subject matter
must be accepted as "patentable" under law. In many countries, scientific theories,
mathematical methods, plant or animal varieties, discoveries of natural substances,
commercial methods, or methods for medical treatment (as opposed to medical
products) are generally not patentable.
A patent is granted by a national patent office or by a regional office that does
the work for a number of countries, such as the European Patent Office and the
African Regional Intellectual Property Organization. Under such regional systems,
an applicant requests protection for the invention in one or more countries, and
each country decides as to whether to offer patent protection within its borders.
The WIPO-administered Patent Cooperation Treaty (PCT) provides for the filing
of a single international patent application which has the same effect as national
applications filed in the designated countries. An applicant seeking protection may
file one application and request protection in as many signatory states as needed.
In general, an application for a patent must be filed, and a patent shall be granted
and enforced, in each country in which you seek patent protection for your
invention, in accordance with the law of that country. In some regions, a regional
patent office, for example, the European Patent Office (EPO) and the African
Regional Intellectual Property Organization (ARIPO), accepts regional patent
applications, or grants patents, which have the same effect as applications filed, or
patents granted, in the member States of that region.
Further, any resident or national of a Contracting State of the Patent Cooperation
Treaty (PCT) may file an international application under the PCT. A single
international patent application has the same effect as national applications filed in
each designated Contracting State of the PCT. However, under the PCT system, in
order to obtain patent protection in the designated States, a patent shall be granted
by each designated State to the claimed invention contained in the international
application.
Procedural and substantive requirements for the grant of patents as well as the
amount of fees required are different from one country/region to the other Patent
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infringement is the commission of a prohibited act with respect to a
patented invention without permission from the patent holder. Permission may
typically be granted in the form of a license. The definition of patent infringement
may vary by jurisdiction, but it typically includes using or selling the patented
invention. In many countries, a use is required to be commercial (or to have
a commercial purpose) to constitute patent infringement.[
The scope of the patented invention or the extent of protection [1] is defined in
the claims of the granted patent. In other words, the terms of the claims inform the
public of what is not allowed without the permission of the patent holder.
Patents are territorial, and infringement is only possible in a country where a patent
is in force. For example, if a patent is filed in the United States, then anyone in the
United States is prohibited from making, using, selling or importing the patented
item, while people in other countries may be free to make the patented item in their
country. The scope of protection may vary from country to country, because the
patent is examined by the patent office in each country or region and may have
some difference of patentability, so that a granted patent is difficult to enforce
worldwide.
Patent infringement insurance is an insurance policy provided by one or more
insurance companies to protect either an inventor or a third party from the risks of
inadvertently infringing a patent.
For inventors, patent infringement insurance covers legal costs in case they have to
sue an infringer to enforce their patent.
For third parties, patent infringement insurance covers their legal costs in case they
are sued for patent infringement by an inventor.
Patent infringement insurance is generally considered too expensive to be worth it.
The premiums are high due to the high legal costs of patent infringement cases. A
typical patent infringement case in the US costs 1 - 3 million dollars in legal fees
for each side. This is despite the fact that 99% of all patent infringement cases are
settled. Legal fees in pharmaceutical cases can run 30 million dollars or more,
although this should be contrasted with the fact that billions of dollars may be at
stake.
In June 2006, a Study for the European Commission on the feasibility of possible
insurance schemes against patent litigation risks was published. The report
concluded that the continuation of the status quo with very little, disproportionately
expensive, bespoke patent litigation insurance (PLI) would not meet any objectives
for a feasible insurance scheme. Instead, only a mandatory scheme was considered
HFSMUN 2013 Study Guide
to be viable in order to provide the economic and technical benefits to the EU and
individual patentees who would arise from a widespread PLI scheme.
Intellectual property (IP) protection has emerged as an important component of
national economic policies. Governments face choices on how to design an IP
system that best serves their policy objectives. They also need to respond to
changes in technology and in business models that may challenge the status quo.
WIPO seeks to contribute to a better understanding of the economic effects of
different IP policy choices and to offer a first entry point for anyone seeking
information on the economics of IP.
The Division for Certain Countries in Europe and Asia (DCEA) ensures WIPO
cooperation activities in the regions covering Certain Countries in Europe and
Asia, namely Central European and Baltic States, Central Asian, Eastern European
and Caucasian countries, as well as some Mediterranean countries. The key focus
of DCEA is to promote the use of the Intellectual Property system by stimulating
innovation and creativity for their economic development, with particular focus on
the need to establish a market order and respect for intellectual property in an
effective way.
The objective is to tailor WIPO’s technical assistance by taking into consideration
the differences at respective levels of economic and social development of
Cooperating Countries and, hence, also different levels of IP infrastructure. In
meeting this challenge WIPO will support these countries in developing national IP
strategies, identifying strategic issues, opportunities and risks, promoting the
implementation of such strategies to accomplish development objectives,
supporting national economic analysis, introducing modern management methods
for the use of IP assets for economic growth.
Main Strategies
1.
Further promotion of IP, taking into consideration different levels of
economic, social and cultural development, as well as different levels of existing
national IP infrastructures.
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2.
Continued cooperation in building national capacities, a relevant knowledge
base, and infrastructure, with a view to enhance the development of IP strategies
and their inclusion in overall national development plans.
3.
Development of relevant IP tools or guidance, taking into consideration
requirements of countries in transition, responding to their specific needs and
challenges; taking advantage of experience gained through implementation of IPrelated activities.
The Changing Role of Developing Countries in the Global IP Landscape
The Novartis judgment marks the first time that a decision by a judicial authority
from a developing country in the area of intellectual property has been so closely
scrutinized and so extensively commented upon internationally. The global media
coverage it received is unprecedented.
The decision’s global reach has also been widely highlighted. Nobel Prize winner
Joseph Stieglitz and scholar Arjun Jayadev called it a “localized effort at
rebalancing the global intellectual-property regime.”1 Others, such as Indian
economic journalist Swaminathan Aiyar, have invited the West to learn from
India’s much tougher patenting system where patents should be given “sparingly
only for genuine innovations where the public benefit clearly exceeds the
monopoly cost.”2 Arvind Subramanian, Senior Fellow at the Peterson Institute for
International Economics, pointed out that “other developing countries, (…) could
be emboldened by the Indian example.”3
The worldwide attention received by the Indian SC ruling and its global
implications could represent a turning point. For decades, scholars and students
from all over the world spent a considerable time studying decisions by judicial
authorities in industrialised countries, in particular those of the US Supreme Court.
Several of these decisions marked the emergence of new trends and approaches to
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intellectual property that, in some cases, would be subsequently incorporated into
international agreements and would also heavily influence intellectual property
legislations in developing countries. This was the case, for instance, of the wellknown Diamond vs. Chakrabarty decision (1980) which was significant in setting
the worldwide trend of patenting life forms and in the development of the
biotechnology industry. Decisions such as Kirtsaeng v. Wiley & Sons (2013) – and
the much-awaited Association for Molecular Pathology v. Myriad
Genetics and Bowman v. Monsanto – are more recent examples of this emblematic
influence of the US Supreme Court.
The Novartis decision might be spearheading a world where judicial decisions
from countries such as China, India and Brazil have an increasing global reach and
contribute to shaping global approaches to intellectual property. It is also more
generally reflective of the growing assertiveness of developing countries,
particularly emerging economies, in the current global intellectual property
landscape. In the past two years, opposition from these countries was an important
factor in the broader mobilization that led to the de facto demise of the AntiCounterfeiting Trade Agreement (ACTA).
Some industry officials see in these developments signs of growing hostility on the
part of emerging economies toward intellectual property protection. John
Castellini, the CEO of the Pharmaceutical Research and Manufacturers of America
(PhRMA), described the Indian SC ruling as “the latest in a troubling pattern of
decisions” adding that “the Gleevec case is not the first case of this type, nor have
the Indian Government’s actions been limited to the biopharmaceutical industry.”
However, caution is warranted and sweeping generalizations need to be avoided. It
is not clear if the Indian SC ruling will induce countries such as China and Brazil
to change their current practices in the area of patenting incremental
pharmaceutical innovations. In the case of India, Subramanian underlines that the
SC decision and other recent patent cases in India “do not point to categorical
hostility to IP protection or to foreigners.” One week after the ruling, India’s
Minister of Commerce, Anand Sharma, was at the World Intellectual Property
Organization (WIPO) in Geneva to mark his country’s accession to the Madrid
Protocol, a key international trademark registration treaty. On this occasion, he
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made a strong reaffirmation of India’s commitment to intellectual property, while
emphasizing the importance of a balanced approach particularly when it comes to
access to medicines.
The Role of the Judiciary in the Implementation of IP Norms
The TRIPS Agreement provides countries with a number of options and
flexibilities to interpret and implement the Agreement in a manner that is
consistent with their public policy objectives. The Doha Declaration on TRIPS and
Public Health (2001) further affirmed that “the Agreement can and should be
interpreted and implemented in a manner supportive of WTO members’ right to
protect public health and, in particular, to promote access to medicines for all.”
Judicial authorities can be the ultimate arbiter in interpreting how national
legislations give effect to TRIPS standards and how intellectual property
provisions interplay with public health considerations. This is what the Indian SC
did in interpreting section 3(d) of the India Patents Act. In another important
judicial decision, the Kenyan High Court found, in 2012, that some provisions of a
2008 Anti-Counterfeit Act could undermine access by HIV-infected patients to life
saving generic drugs, and thus threatened to violate their right to life, their right to
human dignity and their right to the highest attainable standard of health,
guaranteed under the Kenyan Constitution.
The growing role of the judiciary on intellectual property matters in developing
countries could also bring changes to the extent these countries are willing to go
beyond the minimum standards enshrined in TRIPS. While some governments in
developing countries might be susceptible to pressures to accept such demands,
judges, who are supposed to play an independent role, might be less amenable to
do so and seek rather to strike the right balance between the interests involved,
though it is difficult to make generalizations.
In any case, many judges in developing countries do not yet possess the expertise
and experience in dealing with complex intellectual property related issues. Thus,
many developing countries tend to rely heavily on technical assistance to train their
judges. Some industrialised countries have been keen to offer training activities to
respond to such needs.
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Developing countries need to ensure that the technical assistance they receive in
this area is from a diversity of sources, neutral, balanced and tailored to their needs
and socio-economic circumstances particularly in terms of public health and access
to medicines, as this is not always the case.
FUTURE OF IP GLOBALLY
A few years ago, a seminal article raised the following key question: would
developing countries lead or follow in intellectual property in the twenty-first
century? While it might still be premature to answer this question with any
certainty, the Indian SC ruling in the Novartis case might prove to be an important
milestone in reflecting about it. Clearly, in this instance, a major developing
country, India, has chosen to ‘lead’ rather than to ‘follow.’ However, only the
future will tell us is if such a choice is ‘exceptional’ as it touches the highly
sensitive issue of drugs affordability – which is of great political and social
concern in India – or if it is signaling a broader trend.
As the world economy started to slow sharply in 2008, an estimated 1.91 million
patent, 3.3 million trademark, and 660,000 industrial design applications were filed
across the world, according to the report, the World Intellectual Property
Indicators 2010.
Compared to 2007, these figures represent a slowdown in the growth of patent and
industrial design applications and an actual decline in the number of trademark
applications, the report added.
While the bulk of the report focuses on 2008 data – the last year for which
complete worldwide statistics are available – a special section on the economic
crisis looks at preliminary IP filing data for 2009 for the largest IP offices.
These data reveal a drop in patent, trademark, and industrial design applications at
many of these offices. In the majority of cases, non-resident applications were
more negatively affected by the crisis than resident applications, suggesting a
greater short-term focus on home markets.
The report notes that beyond 2009, there are grounds for optimism as patent
applications filed under the Patent Cooperation Treaty (PCT) system and
international trademark registrations filed under the Madrid system have returned
to growth.
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The Madrid system offers a trademark owner the possibility of having it protected
in several countries by simply filing one application directly with his or her own
national or regional trademark office.
“The experience of the first six months of 2010 points to a modest recovery in PCT
applications and a stronger rebound in Madrid international registrations,” said
Francis Gurry, the WIPO Director General. “The experience of the first six months
of 2010 points to a modest recovery in PCT applications and a stronger rebound in
Madrid international registrations.”
“The post-crisis innovation landscape will invariably look different from that of a
decade ago,” Mr. Gurry added. “While the strength of the recovery remains
uncertain, there will likely be a continuing geographic shift of innovative activity
toward new players, especially in Asia,” he added.
Mr. Gurry also praised the “constructive spirit” that led to the recent adoption of
the Beijing Treaty on Audiovisual Performances in June, which protects the
intellectual property rights of audiovisual performers, such as film and TV actors,
and said he hoped that this would carry over in other ongoing negotiations. In
particular, he called on States to endorse a proposed roadmap for a new instrument
on improving access to published works for the visually impaired and printdisabled.
WIPO undertakes activities in three main areas, namely (i) the progressive
development of international intellectual property law; (ii) assistance to
developing countries to build intellectual property capacity at national and
regional levels and encourage more effective use of IP as tool for economic
development; and (iii) services to industry and the private sector to facilitate
the process of obtaining intellectual property protection in multiple countries.
WIPO works in close cooperation with its 184 Member States to promote
intellectual property around the globe and to ensure that all members are in a
position to reap the benefits of an effective and affordable system of IP
protection to promote wealth creation and economic development.
The emergence of the knowledge economy means that IP issues are critical to
national, regional and international policy-making in most areas of economic
endeavour. WIPO has made the demystification of intellectual property one
of its key priorities in line with its commitment to building consensus and
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inclusive dialogue with all stakeholders. The Organization’s long-term
objective is to establish an IP culture built on a broad-based understanding of
IP and respect for IP rights. While WIPO’s outreach efforts continue to target
government leaders and policy makers, creators and entrepreneurs, the
Organization is also working to reach out to the public and educate them
about the importance and value of individual creativity and innovation and to
enlist their participation in the creation of an IP culture that promotes
appreciation and respect for such efforts.
Led by a Director-General, Mr. Francis Gurry, WIPO has a staff of some 950
from 89 countries.
One of the key messages of WIPO is that intellectual property is a strategic
tool to promote economic, social and cultural development. In an attempt to
encourage broader and more effective use of the system, the Organization has
in recent years initiated a number of new programmes to raise awareness
about the strategic value of IP among groups that have not optimally
embraced the system. WIPO’s work with Small and Medium Enterprises is
one such programme.
It is designed to improve the awareness and understanding among
governmental, private and civil society institutions worldwide enabling them
to formulate and implement policies, programmes and strategies to enhance
the strategic use of IP assets by innovators and SMEs.
The programmed compiles and disseminates guidelines, best practice models
and case studies for inventors, creators, academia, entrepreneurs and SMEs
through various media, papers, CD-ROMs and the Internet. For example, in
2004, the first two short guides in the Intellectual Property for Business
Series namely, “Making a Mark” on trademarks and “Looking Good” on
industrial designs were customized and/or translated in more than 50
countries across the globe. The programmed also assists SME associations,
innovation centre networks, business incubators, universities, R&D
institutions, professional associations, and chambers of commerce in
providing IP related support services to their members and constituencies.
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Training programmes for key partner institutions and business service
providers on IP are also organized. The SME programme maintains an
international network of partners that includes a range of national SME
support and finance institutions worldwide, UN organizations, national and
regional IP offices, and copyright administrations/organizations.
While the policy issues concerning traditional knowledge (TK) are broad and
diverse, the IP issues break down into two key themes:
* Defensive protection of TK, or measures which ensure that IP rights over
TK are not given to parties other than the customary TK holders. These
measures have included the amendment of WIPO-administered patent
systems (the International Patent Classification system and the Patent
Cooperation Treaty Minimum Documentation). Some countries and
communities are also developing TK databases that may be used as evidence
of prior art to defeat a claim to a patent on such TK; and
* Positive protection of TK, or the creation of positive rights in TK that
empower TK holders to protect and promote their TK. In some countries, sui
generis legislation has been developed specifically to address the positive
protection of TK. Providers and users may also enter into contractual
agreements and/or use existing IP systems of protection. WIPO’s work on
TK, genetic resources and traditional cultural expressions (TCEs) is founded
on extensive consultation with representatives of indigenous peoples and
local communities and other NGOs. Work in this area began in 1998. The
first step was to listen first hand to the needs and expectations of some 3,000
representatives of 60 TK-holding communities around the world whose
insights and perspectives continue to guide WIPO’s work.7
Many events organized by WIPO in this area involve representatives of
indigenous peoples and local communities and other stakeholders. Since the
WIPO Intergovernmental Committee on Intellectual Property and Genetic
Resources, Traditional Knowledge and Folkore (IGC) was first convened in
2001, special attention has been paid to enhancing the participation of
indigenous peoples and local communities in its work. Over 150 NGOs have
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been especially accredited to the IGC. Many of these represent indigenous
communities and other holders of TK and TCEs. Other steps have included
the convening of an indigenous consultative forum, tailored NGO briefings,
consultations on IGC materials under development, as well as the creation of
a dedicated webpage for accredited observers to post their perspectives,
comments, technical papers, national experiences and similar documents on
issues under discussion by the IGC.8
Working in cooperation with other international organizations and in
dialogue with NGOs, WIPO, in the context of the IGC, provides a forum for
international policy debate concerning the interplay between IP and
traditional knowledge, genetic resources, traditional cultural expressions
(folklore). WIPO’s work in this area ranges from the international dimension
of TK and cooperation with other international agencies to capacity building
and pooling of practical experience in this complex area.9
Questions you must come prepared for…
Q1) How can you promote this privilege in all member nations ?(developing
countries)
Q2) How is this privilege promoted in your country?(developed countries)
Q3) Should the punishment for the offence be same all over the world?
Q4) Should the law/act be amended to make it less or more rigid?
Q5) What are the programs your country has, that focus on protection of
individual rights?
Q6). What should be done if the courts of two countries get involved? Which
court should hold the trial?
To know about your country profile, you can log onto
http://www.wipo.int/directory/en/.
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