Commercial High Technology Innovations Face Uncertain Future Amid Emerging ‘BRICS’ Compulsory Licensing and IT Interoperability Frameworks©

San Diego International Law Journal, Vol. 13, No. 1, Fall 2011

68 Pages Posted: 14 Feb 2011 Last revised: 13 Jan 2012

See all articles by Lawrence A. Kogan

Lawrence A. Kogan

The Kogan Law Group, P.C.; Institute for Trade, Standards and Sustainable Development (ITSSD)

Date Written: February 10, 2011

Abstract

During the past decade the federal governments of emerging market ‘BRICS’ (Brazil, Russia, India, China, South Africa) nations have determined that the shortest path to an industrialized and innovative economy is via the institutional conversion of privately conceived, developed and commercialized intellectual property-rich life science, clean energy, and information and communication technologies into virtually free-of-charge universally accessible national ‘public interest’ assets. In an effort to ensure that their domestic agendas gain currency at the international level they have steadily proceeded to incorporate them within the work agendas of several of standing committees of the World Intellectual Property Organization (WIPO), a specialized United Nations agency that, along with the World Trade Organization (WTO), anchors the current international intellectual property system.

The two ‘BRICS’ nation regulatory instruments of choice have included: 1) broadly defined compulsory licenses for healthcare and clean energy technologies; and 2) government procurement rules expressing direct and/or indirect preferences for patent- and/or royalty-free ‘SMART’ technologies embedded in ‘open’ national healthcare, energy, and information and communication technology standards.

Such regulatory frameworks, unfortunately, have come at the expense of the innovation and investment communities of OECD member nations, inasmuch as they have raised foreign legal and economic risks and uncertainties beyond the already high levels historically associated with domestic capital-intensive technology development, commercialization and market behavior. Despite the burdens they engender, companies and investors may nevertheless avail themselves of certain public international law remedies and private initiatives capable of mitigating the effects of these regulatory and policy risks on company financial performance.

This paper was originally informed by the author’s observations and participation in connection with the 2008-2010 proceedings of the WIPO Standing Committee on the Law of Patents. It will be expanded to reflect new updated information, including the author’s ongoing involvement with such intergovernmental body, until the time it is formally published and released by the San Diego International Law Journal.

Keywords: investors, innovations, regulatory and policy risk, compulsory licensing, patent-free, royalty-free, standards, government procurement, eGovernment, disguised trade barrier, interoperability, open standards, public interest, anti-competition, Brazil, China, India, Russia, South Africa, EU

JEL Classification: G24, D81, L51, M13, O17, O14, O32, O34, O38, Q42, Q48, H51, L86

Suggested Citation

Kogan, Lawrence A., Commercial High Technology Innovations Face Uncertain Future Amid Emerging ‘BRICS’ Compulsory Licensing and IT Interoperability Frameworks© (February 10, 2011). San Diego International Law Journal, Vol. 13, No. 1, Fall 2011. Available at SSRN: https://ssrn.com/abstract=1759655

Lawrence A. Kogan (Contact Author)

The Kogan Law Group, P.C. ( email )

100 United Nations Plaza
Suite 14F
New York, NY 10017
United States
2126449240 (Phone)

HOME PAGE: http://www.koganlawgroup.com

Institute for Trade, Standards and Sustainable Development (ITSSD) ( email )

P.O. Box 223
Princeton Junction, NJ 08550-9998
United States
6096587417 (Phone)

HOME PAGE: http://www.itssd.org

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