ABSTRACT
The unprecedented COVID-19 virus has brought to the forefront many challenges associated with exclusive rights in information, data, and know-how, all of which may constitute protected trade secrets. While patents have received more attention, trade secret information has limited the ability to perform research, develop, test, gain regulatory approval for, manufacture, and distribute globally and at sufficient scale and affordable prices the needed vaccines, therapeutics, diagnostics, medical devices, and personal protective equipment. Voluntary licensing efforts have proven inadequate to supply pandemic needs. Thus, compelling the sharing or licensing of trade secrets is needed not only to properly address COVID-19, but more importantly to address future pandemics and other serious global problems such as climate change. This Article explains the nature of trade secrets and their protection. It then describes the failures in COVID-19 responses resulting from trade secrets that were not voluntarily licensed. It explains why patent law disclosures have been inadequate to assure competitive global research, development, and production. Given the need for compelled trade secret sharing, this Article surveys the relevant international intellectual property law treaties addressing trade secrets. It demonstrates that, consistent with international law obligations, governments are free to compel trade secret sharing. Further, governments may not be obliged to award compensation for such sharing when regulating to address public health. Given this national freedom to act, this Article then provides numerous examples of existing United States, European, and other authorities that have been or could be used to compel the sharing or licensing of trade secrets. It also notes the potential to adopt more explicit legislation authorizing compelled or induced behaviors. This survey of authorities illustrates that compelling trade secret sharing or licensing should be unobjectionable whenever there is a need to protect lives, health, or the economy. Accordingly, this Article provides a first critical step toward rethinking the nature of international trade secret protections and seeks to develop the political will for governments to protect the global public from the harms that trade secret rights can generate.
ABSTRACT
Globally, concerns continue to mount over the accelerating increase in worldwide levels of carbon dioxide (CO2) and other greenhouse gas (GHG) emissions, and over the consequent rise in temperatures and associated adverse effects. Regulatory efforts and market incentive mechanisms to develop and deploy mitigation (GHG emission reducing) measures—from carbon taxes and emission-trading schemes to research and development and production-tax subsidies and intellectual property rights—have so far proven inadequate to control and reduce emissions. Humans are resistant to behavioral changes, and research and development and deployment (with deployment also including demonstration) of emission-reducing technologies is costly, time-consuming, and may strand valuable assets. Even with the dramatic contraction of economic activity and associated reductions of GHG emissions following lockdowns to address the COVID-19 pandemic, “no one should think that the climate crisis is therefore over—far from it” (UN Environment Programme, 2020). © 2021 Elsevier Inc. All rights reserved.
ABSTRACT
Governmental and particularly private funding has recently and dramatically expanded for both beccs and dac technologies. This funding and the associated research, development, and deployment efforts will generate intellectual property rights, particularly patent rights in nets. As with access to medicines, the COVID- 19 pandemic has highlighted concerns that patent rights may incentivize R&D at the cost of affordable access to the relevant technologies. Further, access may be restricted to particular countries based on sovereignty concerns to seek preferential supply agreements through up-front funding. As a result, nations will likely turn to controversial ex-post measures, such as compulsory licensing, to assure access and to control prices of the needed technologies. The same concerns with patent rights likely will affect RD&D of NETS. Although international ex-ante measures exist (such as patent pools) which would help to minimize these concerns, such measures may not induce the requisite voluntary contributions, or may fail to materialize due to political disagreements. Focusing on both US law and international developments, this article proposes various ex-ante measures that can be adopted by national governments and private funders to minimize the likely forthcoming worldwide conflicts that will arise over balancing innovation incentives for, and affordable access to, patented NETS. © Koninklijke Brill NV, Leiden, 2020.