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Abstract:
This Article provides a fresh and multi-dimensioned approach to a long-standing claim of biopiracy made by developing countries and communities. The basics principles of patent law and policy are first established and distinguished from the claim that genetic resources and traditional knowledge from developing countries are being misappropriated in a variety of ways that are loosely referred to as biopiracy. The Article distinguishes rhetoric versus reality in the context of existing national and international patent law. In addition, the Article explains the underlying conflicts, misconceptions, and historical biases that have predisposed some to biopiracy claims. Similarly, the paper presents a new perspective on how the present landscape of international agreements, as well as negotiation stances, has failed to lead to satisfactory resolution of biopiracy claims despite years of heated advocacy at major international forums, including the World Trade Organization, the United Nations, and the Convention on Biological Diversity.

In addition to explaining the dynamics behind the current stalemate, this Article provides a template for moving forward. As a first step, the Article advocates that the piracy lingo be jettisoned and that substantive discussion instead focus on issues of mutual appeal to all countries. Drawing upon past success of issue-framing in the context of the access to medicine debate, this Article proposes two new foci that nations might universally agree on. For example, this Article suggests a novel parallel between the problems alleged to be biopiracy and current problems within Western patent law. In addition, the Article proposes a new internet-based process for promoting meaningful dialogue likely to be more effective than prior proposals because it avoids previous intransigent issues. This final proposal has broad application to many issues at the intersection of patent law and social policy, ranging from the proper scope of patentable subject matter, to the scope of permissible exceptions from patent liability.

patent, biopiracy, WTO, TRIPS, CBD

Abstract:
This paper focuses on Thailand's recent issuance of half a dozen compulsory licenses as a case study to examine the scope of compulsory licensing under TRIPS. This article aims to provide a correct interpretation of compulsory licensing under TRIPS article 31, while simultaneously noting and debunking prevailing interpretations. There is presently great confusion and lack of scholarship regarding the use of compulsory licenses by middle-income countries, as well as the appropriate use of licenses for chronic diseases beyond HIV. This article accordingly fills this gap and also concludes by suggesting additional issues in need of further inquiry, such as a competing perspectives on patents, that may currently contribute to continued resistance to appropriate interpretations of TRIPS.

patent, TRIPS, pharmaceuticals, Thailand, compulsory license, middle-income, developing country

Abstract:
This article provides reflections on the scope of patentable subject matter, using the Supreme Court's recent consideration of Laboratory Corp. of America Holdings v. Metabolite Laboratories, Inc. as a springboard for discussion. A brief introduction to the case and the current standard of patentable subject matter are provided as a backdrop for discussion of the role of patentable subject matter in the overall scheme of patentability and patent enforcement. In addition, this article addresses potential repercussions of the case within the judicial and legislative arenas. This article concludes by offering some broad-based issues for consideration, including both domestic and international implications.

patent, patent reform, patentable subject matter, Supreme Court

Abstract:
Can patent rights and public health coexist? This is a pressing global question in an era where the AIDS pandemic rages in countries that cannot afford to pay for the most effective - and patent-protected - AIDS treatment. Even in countries with higher levels of income, patent problems may nonetheless loom large in unanticipated situations that could turn deadly without access to patented drugs, such as the 2001 anthrax "crisis" or the potential avian flu epidemic.

This article provides an important perspective on how international laws currently impact the intersection between patent rights and public health. This article begins with an explanation of patent requirements under TRIPS that most countries must abide by (as WTO members) regardless of their national commitments to public health. The recent compulsory licenses in Thailand and Brazil are used as illustrations of some of the TRIPS requirements, as well as what issues receive the most controversy. The article also highlights terms in subsequent TRIPS-plus agreements that may further impede access to public health. The last part provides an overview of recent international and national actions that respond to TRIPS-plus agreements. International discussions within the WIPO and WHO forum are discussed, as new proposals, including the proposed treaty for Access to Knowledge (A2K) and a Research and Development Treaty. India's unique approach to limiting patentability to foster public health is also highlighted as an illustration of how nations may comply with TRIPS without sacrificing concern for public health. Finally, technological solutions to address the balance are also considered.

patent, public health, TRIPS, TRIPS plus, compulsory license, A2K, WTO

Abstract:
Do patents promote the progress of justice? The words "patents" and "justice" do not typically appear in the same sentence. Patents are often viewed as obscure things associated with technology, whereas justice is more frequently associated with core foundations of a democratic society. However, patents do have a place in the society envisioned by the founding fathers. In fact, the Constitution empowered Congress to create a system that enables the progress of science. Although patents have Constitutional grounding, whether they are consistent with the goals of justice is a more elusive question. The term "justice" usually is not explicitly articulated with respect to promoting or criticizing the patent system. Nonetheless, as this essay will discuss, there are perceptions of justice inherently tied to the present patent system. However, these perceptions reflect different visions, as opposed to a single coherent one. But before jumping into the heart of the discussion about how justice can or should be achieved in the patent system, some key terms of reference for this essay will first be further defined: patents and justice within the patent context.

patent law, justice, progres of justice

Abstract:
South Africa recently enacted legislation similar to the US. Bayh-Dole Act, which permits publicly funded institutions to obtain patent rights in hopes that the patent incentive will foster commercialization, as well as generate revenues to the funded institutions and scientists. While enacting analogs to Bayh-Dole seems presently in vogue, there are definitely concerned about the original legislation that have been voiced. When South Africa recently published proposed guidelines implementing its version of Bayh-Dole, it broadly opened up the opportunity for public comments. The attached paper discusses some of concerns, including problems with delaying timely knowledge dissemination and the need to provide greater guidance to patent and licensing practices. Specific suggestions to modify the currently proposed regulations are provided.

Patent, Bayh-Dole, research, license, open-source

Abstract:
This chapter will examine current issues concerning the appropriate balance between patent rights and public health under TRIPS. After reviewing the background to TRIPS, it will analyze TRIPS members' efforts to address these issues and discuss their reactions to the recent trend towards increasing patent rights. Recent action taken by India (2005 amendment to patent laws) and Thailand (compulsory licenses) will be given particular emphasis.

patent, TRIPS, health, India, Thailand, compulsory license, Doha Public Health Declaration

Abstract:
This article takes a fresh approach to better understand charged discussions concerning the proper balance of patents and public health. The basic thesis is that while there is a spectrum of views on patents, they are benchmarked by two distinct and seemingly irreconcilable perspectives. One perspective views patents as a mere privilege granted by a nation and thus inherently subject to limitations to accommodate other societal goals, such as access to medicine. The other perspective views patents as an 'uber-right' in that the property right granted by the patent is seen as stronger than traditional property rights that tend to have limitations. While each view may be generally consistent with prior categories of rights- maximalist or rights-minimalist approaches, this article argues instead that neither is per se correct, and that the more important issue is the impact each view has on how patent rules, including rules under TRIPS, are interpreted.

The recent Thai compulsory licenses of patented drugs are used to illustrate the existence and impact of the competing perspectives. The analysis shows that competing perspectives may result in substantial distortions of the law inconsistent with appropriate legal analysis - even by lawyers. The article also considers how the perspectives may be useful in providing a richer understanding of the history of TRIPS, as well as current conflicts. The article concludes with an explanation of how such perspectives are consistent with lessons from social cognition research and that further exploration of such research may help attain the thus-far elusive goal of abating tensions between patents and public health.

patent, TRIPS, pharmaceuticals, medicine, Thailand, compulsory license, social cognition