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Abstract:
Since the nineties of the last century two opposite trends have marked the development of international intellectual property protection. On the one hand, world trade negotiations have resulted in the establishment of a globally uniform system of adequate protection of intellectual property by the GATT/WTO Agreement on Trade Related Aspects of Intellectual Property Rights. It basically enshrines the market-oriented principles of protection of industrially developed countries. On the other, efforts to protect traditional and local knowledge have found specific support in the Convention on Biological Diversity which, in addition to providing, in the interest of environment protection, for mechanisms for the control of access to genetic resources, seeks to promote the condition of developing countries by subjecting such access to principles of prior informed consent and of participation in the benefit enterprises may obtain on the basis of patent protected inventions and innovations embodying or using genetic resources and associated traditional knowledge. The paper first examines the various ways in which biodiversity-related traditional knowledge may be passively or actively defended or protected, but concludes that, with the exception of a defence against misuses of the intellectual property system, little is to be expected from either reliance on existing forms of protecting intellectual property or from the development of more or less analogous forms of sui generis protection, the main reason being that intellectual property protection is a market-oriented mechanism, not a measure of knowledge conservation. In a second part the conflicts are analysed which arise when, as under the Biodiversity Convention, the market-oriented system of protection is put at the service of regulatory schemes aiming at non-market goals, in particular when the acquisition of patents is subject to additional and not directly related disclosure requirements, and when the exploitation of patents is conditioned on "equitable benefit sharing". The main conclusion is that such burdening of patent protected innovation with specific environmental and developmental charges will result in negative synergies. These may have a counterproductive impact first, on the attainment of the regulatory objectives of protecting biodiversity and of promoting development and, second, on the technological neutrality of patent protection as an incentive mechanism for innovation in general. Additional problems of the legitimacy of using intellectual property as a support of objective-specific regulation suggest to implement the Convention on Biodiversity on the basis of a clearer separation between protection of biodiversity, promotion of development and stimulation of innovation, since this would bring it more in accordance with principles of proportionality regarding the selection and the use of regulatory instruments.

international intellectual property law, WTO, international environmental law, biodiversity

Abstract:
In the European Union the relationship between anti-trust law and the law against unfair practices in competition raises not only issues of how to properly delimit the scope of application of the rules of both bodies of law, but also of how to divide the exercise of legislative authority over these matters between the Community and its Member States, and of how to deal with divergences existing between the various national laws in both areas. As far as national anti-trust law is concerned, primacy of Community law, as established by Reg. 1/2003, will solve the conflicts, but it cannot extend, and the Regulation expressly does not extend such primacy to national laws against unfair competition, thus leaving room for overlap and conflicts. However, it is much less the risk of direct or - more likely - indirect conflicts which needs to be examined, than the impact which the law against unfair business practices may have on the overall operation of competition in the Community. It is with a view to this intrinsic interdependency between the law against restrictive practices and the law against unfair practices that this paper examines both the development of Community anti-trust law and of harmonization of national unfair competition laws. The point is made that, on the one hand, the Community seeks to reinforce the competitive process in the market place even through consumer-related unfair competition law in that, by way of harmonization of the law, it essentially imposes upon Member States the concept of a strictly information-reliant protection of consumers, and, on the other, that, as regards conduct in pure business-relationships, the Community, by a subsidiarity approach, leaves Member States much room to regulate competition on the merits as they see the merits of particular business practices. In concluding, it is argued that such reliance on regulatory competition might well be used to counterbalance a one-dimensional welfare understanding of Community anti-trust law by more freedom oriented concepts of fairness in competition.

EU law, economic law, free movement, harmonisation, single market, competition policy

Abstract:
While the "preservation of public goods" as such is not a typical role for competition law, the application of the body of law to so-called knowledge goods presents particularly complex issues. Knowledge does not fit neatly into a framework of analysis that treats property as either private or public. Because knowledge is nonrivalrous in character, anyone may adopt it for his or her own individual purposes in the raw state of affairs. The state may accordingly decide to stimulate the creation of knowledge by providing public parties with legal means of appropriating it, as for example, by laws protecting trade secrets and confidential information, by enforcing contractual agreements, or by enacting the exclusive rights of intellectual property regimes. In that event, competition law intervenes to ensure that private parties do not either jointly or individually, by the exercise of market power, extend that appropriation beyond the limits allowed by law.

Intellectual property, competition law

Abstract:
The completion of a Community system of unitary intellectual property protection has come to a halt when the Commission's proposal for a Community Patent Regulation was shelved by the Council on political grounds in late 2004. By contrast, under the auspices of the European Patent Organization a draft European Patent Litigation Agreement has been set up with a view to have it adopted by those Contracting States of the European Patent Convention (EPC), which would volunteer for it. Given that conceptually both the Community patent project and the European Patent Convention date back to the mid of the last century, and that due to economic and technological change there is a good case to be made for a broad reform effort, it is proposed to benefit from the present crisis of unification of patent law by undertaking a review of the entire system with a view to establish a fundamentally modernized system of protection. This should include the recognition of the role national patents have to play in an integrated system of patent protection in Europe.

European integration, patent law, RTD policy, language policy, Single Market