Effective protection

1. WIPO NATIONAL SEMINARON INTELLECTUAL PROPERTY RIGHTS AND THE PROTECTION OF PHARMACEUTICAL PRODUCTSDamascus, April 25 and 26, 2005 Effective Protection and Enforceability of Industrial Property Rights as an Incentive for the Transfer of Technology WIPO Secretariat

2. Effective protection 1. Introduction 2. International transfer of technology 3. The impact of industrial property on technology transfer 4. Building trust by the licensor and the licensee 5. Do developing country governments have a role to play in technology transfer?

3. Effective protection 1. Introduction

4. Effective protection Technology is a systematic and organized set of information that enables the production of goods and services Transfer of technology is the transmission of technology by the holder of the information and the reception of such information by the recipient in a manner that enables the latter to practice it in an autonomous manner

5. Effective protection Transfer of technology and dissemination of technology are not synonymous Transfer: communication by the licensor+reception/absorption/adaptation by the licensee Dissemination: communication (TRIPS Article 29 and Paris Convention, Article 12)

6. Effective protection 2. International transfer of technology

7. Effective protection Mechanisms: a) imports of machinery b) technical and industrial cooperation c) technical assistance d) space concentration e) transferring rights in intangible goods (i.e. building partnerships)

8. Effective protection 3. The impact of industrial property on technology transfer

9. Effective protection Imports of machinery: the role of IP is peripheral, although relevant, particularly in sectors where international competition is stronger (such as the petrochemical and the cement industries); relevance as to the breadth of the know-how transferred; trade secret protection may be also very important when it comes to enforcement

10. Effective protection Technical and industrial cooperation and technical assistance (contracts of maintenance, training, etc) The role of industrial property protection has a crucial importance as a guaranty of the protection of non-proprietary information

11. Effective protection Space concentration (industry and business clusters) knowledge spillovers (“the mysteries of the trade become no mysteries, but are as it were in the air,” Alfred Marshall) market for specialized skills backward and forward linkages associated with large local markets IP is important as a background framework, in particular for promoting the establishment of the pioneering industries

12. Effective protection Transferring rights in intangible goods (i.e. building partnerships) IP is of the essence! a) IP provides for a legal framework that generates trust b) IP reduces transaction costs

13. Effective protection There is no partnership where there is no trust: (i) trust by the licensor that the licensee shall comply with his obligations; (ii) trust by the licensee that the technology is adequate to achieve its purposes and that the licensor shall honor the guaranty of performance

14. Effective protection b) IP reduces transaction costs (i) technology transfer in a weak IP environment

15. Effective protection (i) technology transfer in a strong IP environment

16. Effective protection 4. Building trust by the licensor and the licensee

17. Effective protection Building trust by the licensor: Proprietary rights in technical creations (patents, utility models, layout-designs, industrial designs, plant varieties) Distinctive signs (marks) Non-proprietary competitive advantages (unfair competition, trade dress, trade secrets, test data) Enforcement (rules that permit effective action against any act of infringement, including expeditious remedies to prevent infringements and remedies which constitute a deterrent to further infringements). All these elements combined are a guaranty that the licensee will not free ride on the information received from the licensor

18. Effective protection Building trust by the licensee a) partly covered by the disclosure requirements of patents b) negotiating ability and experience, so as to avoid the usual traps in licensing agreements c) a good and effective commercial law that protects the contractual rights of the licensee.

19. Effective protection 5. Do developing country governments have a role to play in technology transfer?

20. Effective protection a) governments are not supposed to directly interfere in private contracts (experience shows that government interference hinders more than it helps; private parties tend to conceal information and circumvent red tape) b) but governments can have an important role: they can fill the gap in information between the parties; they can establish incentives for technology transfer; they can contribute to the climate of reciprocal trust by establishing and enforcing effective ip protection

21. Effective protection Thank you.Nuno Pires de CarvalhoActing Director-Advisor Industrial Property Legislation for Development If you have any questions regarding this presentation do not hesitate to contact me at nuno.carvalho@wipo.int