The strengthening of IPRs in developing countries and complimentary legislation

This paper considers areas of legislation and aspects relating to the implementation of IPRs that should accompany the introduction or reform of IPRs laws in developing countries. Its purpose is to highlight areas in which there is a need to enact, and effectively enforce, legislation that should compliment IPRs laws.

Conclusions:

• the implementation of IPRs in developing countries requires to carefully consider other areas of legislation that may directly or indirectly influence the exercise of such rights
• the availability of adequate legal means to control anticompetitive practices is an essential element to build up a fair and balanced framework for the recognition and protection of IPRs. Countries with weak or no tradition in the area of competition law, as it is currently the case of most developing countries, not only need to enact competition laws, they need to ensure an effective enforcement thereof to prevent abuse of IPRs
• the registration procedures for certain products, such as pharmaceuticals and chemicals for agriculture may significantly affect the competitive environment for the exercise of IPRs. While competent authorities should ensure that the required standards of quality, efficacy and toxicity are met, regulations should not unduly restrict genuine competition. The registration of non-patented products on the basis of "similarity" to those already approved by a sanitary authority may enhance competition and access to such products, specially by the poor
• the regulation of transfer of technology is another important complimentary area, particularly as a means to avoid restrictive practices in licensing agreements. Though the control of such practices may be exercised in the framework of competition laws, specific regulations (as existing in Europe) may contribute to the predictability and effectiveness of the legal regime

Policy recommendations:

• to thoroughly examine the interaction between IPRs laws and legislation in areas such as competition, product registration, promotion of innovation and transfer of technology
• to develop, as a component of IPRs or competition laws, effective rules to address anticompetitive practices of IPRs rightholders
• to examine and suggest options for implementing procedures for the registration of pharmaceutical and agrochemical products in a manner that foster legitimate generic competition
• to develop a legal framework for the control of restrictive business practices in transfer of technology agreements, and to support local companies for the acquisition and use of technology
• to support local patent offices in developing appropriate methods and criteria for examination of patent applications, and in establishing a well qualified technical staff as well as networks to improve the examination process
• to develop access legislation consistent with the CBD, including provisions in order to prevent the misappropriation of genetic resources and ensure the flows of germplasm for food and agriculture