December 7, 2010
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An article in yesterday’s Hindu Business Line says the Indian Drug Manufacturers’ Association is lobbying heavily to keep data protection and other innovator-friendly IP provisions out of the free trade agreement being negotiated between India and the EU. But, with Glenmark and Jubilant on the rise, and with even Biocon carrying the R&D water in its deal with Pfizer, demands for IP protection from domestic constituents are bound to be increasingly loud.
Keep an eye on the progress of the free trade talks, continuing with the India-EU summit this week. Apparently, the main gaps are: the percentage of tradable goods that are tariff-free; a sustainable development clause; and the IP issues noted above. We’ll see how hard India pushes to keep IP out of the picture.
February 9, 2010
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Adapted from a bulletin by my colleagues Evan Cobb and Brad Newman:
In the U.S., Section 365(n) of the bankruptcy code provides protection to licensees in the event their licensor becomes insolvent. Canadian law has not historically had that protection, forcing licensors to set up dedicated IP holding companies or other bankruptcy-remote structures to protect their licensees. However, recent amendments to Canada’s insolvency legislation provide a solution for licensees, at least in the case of intellectual property licensors that are restructuring under the Companies’ Creditors Arrangement Act (“CCAA”) or Bankruptcy and Insolvency Act (“BIA”) proposal regime.
Under the amendments, even if an intellectual property license has been successfully disclaimed by an insolvent licensor, the licensee’s right to use, or its ability to enforce a right of exclusive use of, the licensed intellectual property is not affected for the duration of the license agreement (which includes any rights of renewal). The right to continued use is conditional upon the licensee’s continued performance of its obligations under the license agreement in relation to that usage.
Some cautionary notes regarding the Canadian amendments:
- The amendments do not provide protection to licensees in a standard bankruptcy or receivership scenario. If a receiver or bankruptcy trustee of the licensor were to sell the licensed intellectual property and terminate the license associated therewith, licensees would generally be left only with an unsecured claim against the assets of the licensor.
- The exact definition of “intellectual property” is uncertain. Under the U.S. Bankruptcy Code, “intellectual property” is defined specifically (and excludes trademarks). A similar definition may be adopted in Canada, but at the moment the application could be quite broad.
- Obligations “in relation to” use of the intellectual property that the licensee has to comply with may be uncertain in some circumstances. License fees that aggregate payments for all usage, exclusivity rights and maintenance services may be problematic in light of the amendments. Precise delineation of obligations under a license agreement that are attributable to use of the licensed intellectual property would be a prudent drafting response to the amendments.
Read the whole bulletin for more analysis of the amendments’ implications for IP licensors and licensees.
November 3, 2009
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We have been tracking increased innovative activity in India and China as part of this blog’s Trends in 2009 series, because it has the potential to impact the constituencies that negotiate the IP aspects of global trade agreements. Generally, with this blog’s focus on pharma and biotech, posts have mainly considered commercial collaborations to develop novel products.
Two recent stories focussed on different areas highlight just how far China has come from its perceived role as a country completely neglectful of innovators’ IP:
- A Thomson Reuters study released yesterday shows “explosive growth in research output from China,” with output doubling since 2004. There is no way the developments China is making in physical, biological and chemical sciences will fail to translate into innovation and new demands for IP protection.
- The first salvo wasn’t in biotech, as it turns out, but in copyright. According to a recent Forbes article (H/T @TechLaw_Elman):
A Chinese writers’ society accused Google of infringing on the copyrights of at least 570 Chinese authors by scanning and uploading their books into Google’s digital library without seeking consent.” and is “soliciting all Chinese writers to voice their opposition before a U.S. court finalizes a settlement at a hearing scheduled for Nov 9.”
Still, these developments move China much farther toward being an enforcer of intellectual property rights both domestically and on a global scale.
April 13, 2009
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The Federal Trade Comission will be hosting a public hearing this Friday on the “The Evolving IP Marketplace: Markets for Intellectual Property”. This is part of series of public hearings the FTC has held around changes in intellectual property law, patent-related business models and the new IP marketplace. Looking at the agenda, I was surprised to see that life sciences industry will not be represented on the industry witness panel that will discuss valuing and monetizing patents. The meeting will be webcast.