UK’s Promotion of Royalty-Free Government Procurement Standards - NOT AS REPORTED

http://www.mondaq.com/article.asp?articleid=129510

United Kingdom: UK’s Promotion of Royalty-Free Government Procurement Standards Not as Reported

April 14, 2011

By Lawrence A. Kogan

FOSS pundits have made much ballyhoo of the recent Procurement Policy Action Note issued by the UK Cabinet Office of Government Commerce (OGC) during January 2011 that defines 'open standards' as including only those which "have intellectual property made irrevocably available on a royalty-free basis" (emphasis added).¹

As an example, U.S. attorney Andy Updegrove, author of one recent article on the subject entitled,United Kingdom: U.K. Comes out for Royalty-Free Standards for Government Procurement,² waxed poetically about the UK government document's noteworthiness. To paraphrase the author's four main points, the UK government Procurement Policy Note is noteworthy because: 1) it includes informal regional as well as national standards consortia among the internationally recognized specification or standards organizations whose 'open' standards can and should be considered by the UK for government procurement purposes;2) its definition of 'open' standards constitutes a legally acceptable "repudiation" (allegedly consistent with the policy space afforded EU Member State governments vis-à-vis the European regional lawmaking institutions) of and permissible derogation from the final, binding European Interoperability Framework adopted by the European Commission during December 2010, following many years of thoughtful deliberation and contentious debate;3) it emulates and embraces a robust definition of 'open' standards that is very similar to that contained within the national interoperability framework adopted during November 2010 by the Indian Government; and 4) it proves that corporate lobbying and forum shopping undertaken at the EU Member State governmental level on behalf of the 'penguin' (open source) and 'software-as-a-service' (SaaS) industry communities can be successful, at least temporarily.

A closer examination of the UK Procurement Policy Action Note reveals that its ostensible noteworthiness and the author's observations relating to the legal and policy issues surrounding it are more nuanced than they have been depicted...

Brazil's 'Public Interest' IP Opportunism Knows No Limits - Third Country Transit Points Now Being Used

http://www.reuters.com/article/marketsNews/idUSN2327254420090123

Brazil to Object to Dutch Seizure of Generic Drug

Reuters


By Pedro Fonseca and Reese Ewing


Jan 23, 2009

RIO DE JANEIRO, Jan 23 (Reuters) - Brazil said it would file a complaint at the World Trade Organization over the seizure by Dutch authorities of a shipment of a generic high blood pressure drug made in India.

Local foreign and health ministries said a company claiming to have intellectual property rights to the arterial hypertension drug losartan in the Netherlands requested customs authorities seize a shipment of a generic version of the drug in transit from India to Brazil, two countries where the patent is not protected.

The Brazilian government can withhold intellectual property rights for a drug if it considers it "in the public interest." Its health-care system provides free drug treatment for certain conditions such as AIDS and high blood pressure.

"The Brazilian government feels that the decision by the Dutch authorities to detain the basic material critical for the public health of a developing country ... a serious step backward on the question of universal access to drugs," said the note released by the Brazilian ministries late Thursday.

[SINCE WHEN IS BRAZIL A DEVELOPING COUNTRY??? IT IS AN AGRICULTURAL & ENERGY SUPERPOWER!! AT THE VERY LEAST, IT IS AN EMERGING ECONOMY!! SORRY GUYS. THIS ARGUMENT NO LONGER WORKS!! IT'S TIME TO INVEST IN PUBLIC EDUCATION!]

The statement also said the government would take its complaint to the executive council of the World Trade Organization in Geneva.

High blood pressure is one of the leading causes of death among Brazilians.

[SO MUCH FOR PUBLIC EMERGENCY OR EXIGENT CIRCUMSTANCES OR ANTITRUST ACTIVITY AS AN EXCUSE FOR A 'TAKING'. NOW ALL THAT IS NECESSARY IS THAT THE BRAZILIANS WANT WHAT THE FOREIGN PATENT HOLDERS HAVE!! THIS IS WHAT THEY CALL 'PUBLIC INTEREST'!!]

The cargo of generic losartan that was seized in Rotterdam was sent back to India, where it was manufactured by Dr. Reddy's, the ministries' note said. The drug was being imported by Brazil's EMS.

[NOW, WHY WOULD THE BRAZILIAN SHIPPER USE ROTTERDAM AS A THIRD COUNTRY TRANSIT POINT BETWEEN INDIA AND BRAZIL??? AND WHY WOULD DR. REDDY'S, WHICH IS ALL-TOO FAMILIAR WITH THE LAW OF PATENTS, WANT TO DO THIS??? ARE THERE ANY TARIFF BENEFITS OR FINANCIAL PAYOFFS?? WHY WOULD THE DUTCH GOVERNMENT INTERVENE ON BEHALF OF FRENCH AND AMERICAN PATENT HOLDERS?? DOES IT HAVE A LEGAL DUTY TO DO SO?? ARE THESE DRUGS PATENTED ALSO IN THE NETHERLANDS?? HOW DID THE PATENT HOLDERS GET WIND OF THE SHIPMENT??]

Losartan is the generic name for the drug Cozaar that was co-developed by Merck & Co and DuPont Co.

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http://www.bloomberg.com/apps/news?pid=20601091&sid=aOUxZ.aZKnbA&refer=india

Brazil Protests Seizure of Dr. Reddy’s Drugs in the Netherlands

By Joshua Goodman

Jan. 21 (Bloomberg)

Brazil protested the seizure in the Netherlands of shipments from Dr. Reddy’s Laboratories Ltd., India’s second-biggest drugmaker.

Customs authorities in Rotterdam seized shipments of the generic drug Losartan, used to treat high blood pressure, while in transit to Brazil, the South American nation’s foreign ministry said in a statement.

Authorities were acting on the request of an unnamed [???] company that allegedly has patent rights over the drug in the Netherlands, the foreign ministry said. Losartan can be imported freely in Brazil.

“The decision by Dutch authorities to seize a strategic supply for the public health system of a developing country, exported according to international norms, signals a grave step backward in the universal access to medicines,” the ministry said in the statement.

[BRAZIL IS NOT A DEVELOPING COUNTRY!!]

Officials at the Netherlands embassy in Brazil weren’t immediately available to comment after normal business hours.

The Brazil foreign ministry said the seizure “raises doubts about the commitment of European countries to help people in developing countries gain access to medicines.”

[BRAZIL IS NOT A DEVELOPING COUNTRY!!]

Brazil plans to complain to the World Health Organization in Geneva and possibly to the World Trade Organization.

The drug shipment has been returned to India, the foreign ministry said.

It's Rather Simple, Really: If China & India Desire Climate Change Technology Transfer, They Must ACTUALLY Respect Foreign Private IP Rights!

http://www.climatechangecorp.com/content.asp?ContentID=5830

From politics to business: Technology transfer to Asia

By Rajesh Chhabara

Climate Change Corp Climate News for Business

December 9, 2008

Climate change technology transfer needs to move from being a political football to becoming a business opportunity, but how?

As countries gather in Poznan to begin another round of negotiations to develop a successor agreement to the Kyoto Protocol, which expires in 2012, technology transfer remains one of their most complex challenges.

Developing nations, led by China and India, complain that rich countries have not kept to their part of the deal to transfer clean technologies as envisaged in the United Nations Framework Convention on Climate Change (UNFCCC), Kyoto Protocol and again emphasised in the Bali Roadmap.

The Bali Roadmap, which resulted from the last round of negotiations in Bali, Indonesia in December 2007, pledged action to remove obstacles to deployment, diffusion and transfer of affordable environmental technologies to developing countries including providing financial assistance. In Bali, India and China aggressively opposed binding emission targets on developing nations and instead asked for financial assistance for clean energy technologies.

Developing economies, including China and India, say they need access to environmentally sound technologies and funds to reduce their greenhouse gas emissions while continuing to develop.


India has repeatedly said it needs access to clean technologies especially in energy, manufacturing, transportation and agriculture. Speaking at the Asia-Europe Summit in Beijing in October, the Indian Prime Minister Manmohan Singh said: "Unfortunately, the international community has not lived up to its commitments for technology transfer and additional financing since the Rio conference.”

UNFCCC chief Yvo de Boer, who was in Beijing to attend a high level conference on climate change and technology transfer in November, agreed saying: “The developed world has not paid sufficient attention to technology transfer. International technology transfer will allow countries like China to take action which is not affordable to them at the moment.”

[HOW IS IT POSSIBLE THAT CHINA, WHICH, AS OF NOVEMBER 2008, HOLDS 27% OF THE WORLD'S FOREIGN CURRENCY RESERVES (APPROX. 1/3, IF YOU ALSO INCLUDE MAJORITY CHINESE NATIONS SUCH AS MACAU, HONG KONG, TAIWAN and SINGAPORE) IS UNABLE TO AFFORD TO TAKE ACTION??]

[See: List of Countries by Foreign Exchange Reserves, Wikipedia, at: http://en.wikipedia.org/wiki/List_of_countries_by_foreign_exchange_reserves ].

New Delhi-based Energy and Resources Institute estimates that India would need $5bn a year between 2012 and 2017, over and above its current investment plans, to make the transition to low carbon energy generation.

A report by the UNFCCC published in January revealed some interesting dimensions of technology transfer through the Clean Development Mechanism (CDM). CDM projects allow developed nations to offset their own greenhouse gas emissions by investing in emissions reduction projects in developing countries.

The report said only 39% of CDM projects - accounting for 64% of the annual emission reduction claims - claimed technology transfer. Technology transfer took place predominantly in destruction projects for HFC and N2O - two potent greenhouse gases. HFC and N2O destruction projects generate very high numbers of Carbon Emission Reductions (CERs) or carbon credits. In most of these cases, the buyer of CERs was also the supplier of technology and finance.

What [Do] India and China want?

But India and China want clean technologies for wider applications mainly in power generation, steel, cement, chemical, paper, aluminium and agriculture sectors which are identified as the most energy intensive industries.

While India and China have mastered bio-mass energy and hydro power respectively, they need access to other technologies such as those enabling methane trapping from coal mines, energy efficiency, energy distribution, fossil fuel alternatives, energy from landfill gas and reforestation.

China and India suffer from a heavy lack of energy efficiency in their industrial sectors. The International Iron and Steel Institute estimates that China could reduce 180 million tonnes of CO2 from the steel industry alone if its efficiency was brought on par with Japan.

According to a study by the UN Department of Economic and Social Affairs in 2004, China’s coal-fired power plants consumed 30% more coal than German plants, indicating huge potential for emission reduction by switching to cleaner technology.

Similarly, Asia can save hundreds of millions of tonnes of carbon in the transport sector, which remains amongst the most energy-inefficient in the world. An Asian Development Bank backed study on “energy efficiency and climate change considerations for on-road transport in Asia” in 2006 said that the global transport sector in 2002 accounted for 21% of the world's total energy consumption and is projected to generate over 60% of the increase in total energy use through to 2025.

The report projected that emerging Asian nations would provide much of the future growth in oil consumption – and greenhouse gas emissions - due to their strong economic and population growth. It concluded that increasing energy efficiency in the road-transportation sector is crucial to mitigating climate risks.

Lu Xuedu, deputy director general of China’s National Development Reform Commission, backs up the report, saying, “transferring more efficient technology to developing countries would achieve large scale emission reductions at lower cost.”

Several European countries currently own the latest clean technologies. Technology experts point to the Netherlands (bio-mass), Germany (energy efficiency households and N2O), Sweden and Norway (Hydro power), Italy and Spain (wastewater treatment) and France (nuclear and environment-related technologies) as leaders in their respective technologies.

Cutting edge technologies in wind power and solar power also remain concentrated in Europe and the US, and are largely owned by private companies. Japanese companies dominate technologies in industrial scale energy efficiency, HFC and transport projects.

Some of the largest players in clean technologies include Hydroenergy (hydro-power, Norway), Q-Cells (solar, Germany), Vestas (wind power, Denmark), GE (wind power, U.S.), Kawasaki Heavy Industries (waste heat generator, Japan), Vichem (HFC destruction, France), Uhde (N2O abatement, Germany) and Mitsubishi (clean coal technology, Japan).

N. Yuvaraj Dinesh Babu, chief executive of The Carbon Rating Agency- a company belonging to the Idea Carbon group, says that intellectual property rights (IPR) form the main barrier to technology transfer. Western companies are wary of sharing their technology and know-how with developing countries, he says, as they fear losing control of the market to copy cats: “The high cost of clean technologies is also prohibiting technology transfer.”

According to the UNFCCC report, technology which has been transferred through CDM projects so far, originated mostly (over 70%) from Japan, Germany, the US, France, and Great Britain. The report analysis found that the rate of technology transfer was higher where foreign partner participated in the project. Whilst joint ventures may be better placed to facilitate technology transfer, the report says, they would still require investment incentives and IPR protection guarantees by the host government.

Policy intervention in the CDM can also stimulate technology tranfer. China’s CDM policy states that projects should encourage transfer of environment technology though it does not make it mandatory. India’s policy is very vague on the requirement of technology transfer in CDM projects. Malaysia, on the other hand, has made it mandatory that a CDM project must involve import of environmentally sound technology.

As a result of these policies, whilst only 7.3% CDM projects in India mentioned transfer of technology by 2006, the figure for China was 55.1% and a staggering 83.3% for Malaysia. The main technologies transferred to Malaysia included biomass, biogas, substitution of coal with biomass in a cement manufacturing plant, methane capture from landfill gas, hydropower, agriculture (composting) and energy efficiency.

The Carbon Rating Agency's Babu says developing nations should adopt a three pronged strategy if they want access to clean technologies: they should set up a national level high-power organisation tasked with creating enabling environment for technology transfer, put in place a stronger IPR regime and find ways to finance projects including using local investors and international assistance.

India and China both have reformed their intellectual property rights regulations as required by their commitment to WTO but they are often criticised for lax enforcement.

Private joint ventures in large coal projects may also incur problems as most energy production is still in the hands of the state in India and China. In India, renewable energy– a current boom sector – is entirely in the private sector, and some reforms in the last few years have opened the conventional power sector for private investment.

Adaptation of clean technologies to local conditions is another area of concern. Babu suggests that the technology transfer should be planned in four phases: the host country should carry out a need assessment to identify technology needs. Then, adaptation aspects of the chosen technology should be worked out followed by a pilot project. Only after a successful pilot, the full scale deployment should take place.

China advocates the establishment of a Multilateral Technology Access Fund to finance technology transfer to developing countries. Xie Zhenhua, vice chairman of China National Development and Reform Commission says, “such a fund can cut down the cost of technology transfer to developing countries.”

He says that lack of access to green technologies at this stage can have serious implications as developing nations are building massive infrastructure to keep pace with industrialisation. Use of old technologies can only aggravate global warming.

China wants this fund, established by developed nations by contributing 0.5% of their GDP, to be used to enhance mitigation, adaptation, research and development in technology, and technology transfer.

However, in view of the global financial crisis, demand for funding may face resistance from developed nations in Poznan talks. “The greater emphasis will be on technology transfer,” says Ajay Mathur, director general, Bureau of Energy Efficiency who is a member of the Indian team for Poznan negotiations.

In the last few weeks, China and India both have reiterated that technology transfer at cheaper rates is crucial to their commitment to reduce greenhouse gas emissions without compromising on their development needs. International negotiators at Poznan are under pressure to produce a framework for technology transfer to developing countries in order to keep up the hopes of a final deal in Copenhagen by end-2009. Facts: Trends in technology transfer within Clean

Development Mechanism (CDM) projects

· Technology transfer is more common for larger CDM projects

· 39% projects (representing 64% estimated emission reductions) claim tech transfer

· Unilateral and small-scale projects involve less technology transfer

· Technology transfer is more common for projects that have foreign participants: almost half of projects with foreign participants claims tech transfer

· Host country can influence the extent of technology transfer involved in its CDM projects: The DNA approval criteria of these countries include provision for technology transfer

· 56% of the projects that involve technology transfer claim both equipment and knowledge transfers

· 32% of the projects claim transfer of equipment only

· 11% claim transfer of knowledge only

Source: Technology Transfer in CDM Study by UNFCCC, Dec 2007

Indian Government Should Be Applauded for Recognizing Need to Protect Private Property Rights in Costly Drug Patents

http://economictimes.indiatimes.com/News/Govt_may_use_compulsory_licensing_for_drug_companies_only_in_emergency/rssarticleshow/2921237.cms

Govt may use compulsory licensing for drug companies only in emergency


3 Apr, 2008


By Sanjeev Choudhary & Khomba Singh,


Economic Times from TNN

NEW DELHI: Global drug companies that under attack from Indian generic companies and healthcare groups on compulsory licensing (CL) issue can breathe easy. The government will not invoke CL unless the country is faced with an epidemic-like situation. It feels that the recent applications for CL may not be able to convince the government to take the extreme step. Hyderabad-based Natco Pharma has recently applied for CL to export generic versions of two cancer drugs —Roche’s Tarceva and Pfizer’s Sutent—to Nepal.


“We are not in favour of CL unless there is an extraordinary problem. There is no point in going in for CL unless there is an epidemic which impacts a large chunk of the population, and needs immediate solution, ” a senior official of DIPP (Department of Industrial Policy and Promotion), the nodal government department which oversees patent offices in India told ET.


On being asked if a disease like cancer may qualify under CL, he said, “It may not.” In addition to Natco Pharma, an NGO Cancer Patient’s Aid Association (CPAA) with the support of Indian and global NGOs is planning to demand CL for about 20 cancer drugs.


CPPA say that the cost of patented cancer drugs are highly expensive and deny access to treatment to thousands of cancer patients in the country. Once a drug gets patent, the government provides the innovator company with exclusive marketing rights of the drug for 20 years from the date of grant of the patent.


However, under the product patent laws in India and other countries, the government can invoke CL to enable non-patent drug makers to manufacture and sell patented drugs in national or public interest. The government is of the view that the provision in the law for CL is there to deal with extraordinary situations and safeguard national interest.


“Research-based companies invest millions of dollars and several years of research to develop new products and secure their patent. We respect genuine research and can’t infringe upon any company’s patent rights without much reason, ” the official added.


The government’s thinking seems to be in sync with the views of research-based drug companies. Organisation of pharmaceutical manufacturers and producers (OPPI) (which represents research based companies in India) VP Tapan Ray said, “CL is a provision in the patent law which the government can use to meet the demand in unusual circumstances like epidemic for a limited period. CL should not be invoked for anything else. If it is invoked for any other reason, the whole sanctity of patent gets lost.”

Indian Pharma Company Refuses to Register Drug in Thailand Due to Risk of Patent Compulsory License

http://www.bangkokpost.com/breaking_news/breakingnews.php?id=126289


Chaiya favours CL on cancer drugs - for now


Bangkok Post.com


March 3, 2008


Public Health Minister Chaiya Sasomsap insisted on Monday that he intends to persevere with the policy of issuing compulsory licences (CL) for key cancer drugs - but the government may still decide to cancel the patent-busting measure.

Mr Chaiya, who has ordered a review of CL policies on drugs for heart disease, spoke on Monday with representatives from the labour union of the Government Pharmaceutical Organisation (GPO), which is theoretically to break patents and manufacture generic copies of expensive drugs eventually.


He said the issue will be finalised within two weeks, and insisted he will not withdraw the CL ordered on cancer drugs for poor patients.


He said, however, that the final decision on the issue rests with the Commerce Ministry. The public must await the results from the commerce ministry.


Rawai Phupaka, chairman of the GPO Labour Union said that an Indian drug company postponed drug registration in Thailand for another 25 months pending the public health ministry's final decision on the CL.

[EVEN THE INDIAN PHARMA COMPANIES ARE RELUCTANT TO REGISTER THEIR DRUG PRODUCTS IN THAILAND DUE TO THE LACK OF RESPECT FOR PRIVATE PROPERTY-BASED PATENTS. THE IMPRUDENT THAI GOVERNMENT POLICY WILL THUS HARM THE WELFARE OF THAI CITIZENS!]


The postponement, he pointed out, might cause the GPO substantial monetary damages. Until it is able to manufacture the drugs itself, the GPO is to import and resell Indian-made copies of the drugs. (TNA)