Wednesday, January 16, 2019

Thai medical marijuana legalisation starts access to medicines battle

Image result for cannabis images Thailand legalizing medical cannabis use might seem to have little IP relevance, but IP seems to be the biggest concern. The worry is a flood of patents for medical cannabis. Thailand is already highly sensitive about the effect of patents on access to medicines. News reports that a high volume of patent filings will be contrary to the public interest. Commentators say that this will deny Thai patients access to cannabinoid medical products resulting from them due to high costs of innovator owned medicines and also that Thai researchers will have more limited access to marijuana compounds to research.  

Whilst much of the media hype has referred to the common panic about dominance by multinational big pharma, the cannabinoid medicines industry is typically a different group. GW Pharmaceuticals is a small UK company which focuses on cannabinoid products for multiple sclerosis and is now expanding into other therapeutic areas. It is the biggest ogre since it has applied for various cannabis drug patents in Thailand. Some are co owned by Japan's Otsuka Pharmaceutical. So far the numbers of cannabinoid patents in Thailand are believed to be relatively small, just over a dozen or so. 

The issue pits the Thai Government Pharmaceutical Organization (GPO) against the patent office. The GPO argues cannabinoid products are naturally occurring so cannot be patented. Of course patent law is more subtle than that and ways to manufacture, process and refine natural products are of course patentable f they are completely new, and not obvious. News reports suggest the patent office may refuse the patents. In November the Thai Prime Minister waded in stating that he could use the military drafted constitution to cancel the patents. Another point is that these patents were filed long ago before legalisation, so may fall foul of another provision on legality of the patent.

However another consideration is control over plant varieties for cannabis strains and the potential restrictions on farming that might follow. Expect a long drawn out debate. Because only medical uses are legal, neither side will be consuming anything to relax over the issue!


Monday, January 14, 2019

ISP copyrght and trademark liability solutions in Philippines and Thailand

In the Philippines Senate Bill No. 2109 a.k.a. the Philippine Online Infringement Act is close to enactment. It will establish a system to allow complaints filed at the IPO to notify the National Telecommunications Commission to terminate trading licenses for ISPs that continue to permit hosted websites to infringe or assist copyright infringement.

Meanwhile in Thailand a new bill seeks to put teeth into a system which was out in place several years ago.  Thai copyright law amendments, details of which are here, failed to deliver the results needed. That is to require ISPs to take down infringing content or risk an injunction, Instead ISPs frequently require a  court order  to remove illicit content. The new bill establishes a  notice and takedown system to provide save harbor. If they don’t comply, ISPs become liable for the infringement.

In both countries copyright enforcement should become easier; however trademark infringements hosted by ISPs remain problematic. ISPs especially e-commerce sites also need safe harbor protected by notice and takedown, along with a threat of injunctions and if they fail to comply, liability. And if possible fast administrative site blocking.

Thursday, January 10, 2019

New product labelling rules in Indonesia

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New product labelling rules in the F&B, personal care and pharma sector aim to improve consumer safety.  Indonesia’s FDA (a.k.a. BPOM) issued its Regulation 22 in late 2018 to require BPOM issued bar codes to be used. All foods and drugs health supplements, cosmetics and processed foods must now have a bar code,  issued by BPOM and put it on the label.  This will apply to locally produced and imported goods.  Track and trace technology will enable verification and digital reporting will support this.  

Monday, January 7, 2019

The Vietnam-EU FTA

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2019 should see the Vietnam Europe Free Trade Agreement come into effect. The final text was agreed and the EC Commission approved then it was sent to the EU council for signature (during which time each Member State reviews it) and finally it will be submitted to the European Parliament for adoption probably by mid 2019.  The EU Singapore FTA is slightly more advanced and due to adoption in early 2019 too.

The Agreement contains a so called TRIPs+ IP chapter. That means the provisions go beyond the WTO TRIPS agreements. Whilst this is sometimes criticized as being to much for developing countries to bear (e.g. in enforcement), in many cases it provides more useful detail on existing TRIPS obligations.

Key provisions include the following:

a. A large number of provisions mirror TRIPS, restating obligations sometimes with a little more detail. In other cases, it covers areas where TRIPS is silent (such as freedom to choose parallel import regimes)
b. Performers, phonogram/sound recording and broadcast copyright is strengthened. Vietnam's own music industry will welcome this.
c. Anti circumvention and rights management provisions are included. This is intended to prevent music and film piracy.
d. Artists' resale rights are provided.
e. Trademark non-use is extended to 5 years 
f. Extensive GI provisions are set out. Vietnam is a relatively active proponent of GI protection and registers many GIs. A large scale reciprocal registration system will occur under the FTA. there are transitional provisions for certain contentious GIs like Feta and Champagne.
g. Designs provisions require Vietnam to join the Hague Agreement (generally felt to be helpful in SEA by reducing cost) and allows dual copyright protection for designs.
h. Patent term extensions where marketing delays occur are permitted (a provision that access to medicines advocates dislike).
j. Regulatory test data protection is required (again disapproved by access to medicines advocates), to protect innovator test data submitted in the marketing approval process. (Technically TRIPS intended to cover this but its provisions never worked.)
k. Extensive provisions to improve civil IP litigation are included. these are likely to be helpful in an emerging IP system such as Vietnam's where court system weakness is often cited as a problem. Important additional remedies include right to information, proper damages, legal costs and published decisions.
l. Clearer internet ISP liability, injunction and safe harbour provisions should improve online enforcement - often cited as a concern.
m. Border enforcement improvements are mandated. In fact Vietnam has a functioning IP border protection system, its problems are more a scale problem due to proximity to China (especially the problematic northern land border).

Whilst criminal provisions are not covered (as criminal provisions are not harmonized in the EU), the parties are required to follow TRIPS.  there are also an array of cooperation and technical assistance mechanisms which will likely lead to the EU spending a great deal of time and resources working with Vietnam to improve its IP system from 2020 on.

Sunday, January 6, 2019

New kids on the piracy block

For years movie anti piracy activity has been led by the Motion Picture Association, which helps its member film studios (principally the major Hollywood studios) address film piracy and market access. In Asia over decades they have work to address VCD, DVD, broadcast, camcording and online piracy. 

Now a new organization has appeared. The Alliance for Creativity and Entertainment (ACE) is a global anti-piracy coalition which represents many of the new content giants such as Amazon, Neflix, HBO, as well as the digital arms of many studios. 

In Thailand a new government anti-piracy agency opened in December. The Center of Operational Policing for Thailand Against Intellectual Property Violations and Crimes on the Internet Suppression, otherwise known as COPTICS, is a collaboration between The Royal Thai Police (RTP) and the Office of the National Broadcasting and Telecommunications Commission  (NBTC).  It aims to block piracy sites faster than in the past. Its first complaint was filed by Netflix. 

The digital world shifts every few years and this new structure represents the new content order and its needs to address piracy. Asia can expect to play a leading part in this as digital entertainment grows exponentially across the region. 

Monday, December 17, 2018

Myanmar Parliament passes trademarks law

The long-awaited Myanmar Trademark and Geographical Indication Law was passed by the Lower House on December 12, 2018 following its adoption by the Upper House on February 15, 2018. The new law is likely to be enacted at the end of December 2018 or within the first quarter of 2019.

Among several notable changes, the new law introduces a "first-to-file" system that requires no evidence of prior use or ownership in Myanmar. The law significantly improves the ability of trademark owners to counter bad-faith trademark squatting and, in cases where infringement is found, provides higher potential damage and fine amounts and customs actions. In addition, the law introduces substantive examination of applications, oppositions, inv
alidation and cancellation actions, and envisages establishing a specialized Intellectual Property Court to handle all IP disputes. The new law also clarifies protection for “well-known” trademarks, provides trademark publication and renewal, makes available multi-class applications and priority claim, and extends the availability to register shape and packaging as trademarks. Geographical indications (e.g. Champagne, Cognac) are also protected through registration.

There is no procedure for automatically re-registering marks which are recorded under the current system. Therefore, marks and geographical indications currently recorded with the Registry of Deeds and Assurance must be re-applied for once the law enters into force, otherwise they will lose their validity. This is according to Section 92 of the new law, “The trademark owner who has registered at the Office of Registrar of Deeds and Assurances in accord with the Registration Act before this law is coming into force, desirous of enjoying the rights of the registration of mark, shall file an application in accord with this law to get the rights of registered mark.” The transition period to re-apply for a mark or geographical indication will probably be three to six months after the law is enacted/entered into force.

The documents required to re-filing marks are: 
1.   Completed application form provided by IP Office;
2.   Original duly recorded Declaration of Ownership of Trademark at the Registry of Deeds and Assurances;
3.   Evidence of use may also be required such as photo of the product/shop in the Myanmar market or Customs Clearance;

Other IP laws are also expected to be enacted soon by the Lower House.

Thursday, December 6, 2018

New IP treaties in the works will matter for SE Asia

Image result for Asia pacific map The Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP), (formerly the Trans-Pacific Partnership (TPP) before Trump pulled the US out) will come into force in 2019. The 11 state deal includes 4 ASEAN countries Singapore, Brunei, Malaysia and Vietnam as well as 7 other Asia-Pacific countries - Australia, Canada, Chile, Japan, Mexico, New Zealand and Peru. With China and Japan that makes this deal over 15% of world trade and CPTPP the third largest free trade area in the world after NAFTA and the EU. Singapore and Vietnam ratified earlier in 2018. Both will need to make legislative amendments (Singapore has already begun that). 

The IP Chapter has the most comprehensive IP standards of any FTA and includes extra jurisdictional provisions on theft of IP by corporations operating abroad. It also has what are known as TRIPS Plus provisions. These include relating to subject matter patentability scope, patent term extensions for regulated products, data exclusivity (esp. for pharma and agrochem products), patent linkages (to regulatory approvals), and more robust enforcement measures (which in general TRIPS has failed to achieve).

Another trade deal is the Regional Comprehensive Economic Partnership (RCEP) is a proposed free trade agreement (FTA) between the ten ASEAN members and six which have existing FTAs with ASEAN including Australia, China, India, Japan, South Korea and New Zealand. This will ultimately comprise 40% of world trade so will become the biggest FTA yet. Negotiations are close to a final agreement. 

RCEP has a comprehensive IP chapter and in general is expected to seek to achieve similar standard to the CPTPP in many of the areas described above. The arguments over the extent of patenting, access to medicine made in countries that signed the CCPTPP are now playing out in the remaining countries looking at the RECP.

A major concern is that RCEP is driven by China and countries that are looking at whether to join, such as Thailand, worry that it may threaten their US relations.

Thursday, November 29, 2018

Singapore digital piracy - taking on the set top box market

Image result for kodi set top boxAcross Asia, new forms of content delivery systems are creating new forms of piracy. The movie and content industry’s efforts to attack these are illustrated by new IP cases. The High Court in Singapore ordered several Internet Service Providers (ISPs) to block access to links which provide pirated content such as movies, TV shows and live sports to new TV devices.

Home entertainment devices such as set top boxes and illicit streaming devices (“ISDs”) are increasingly used to access pirated content due to their “open source” nature. Apps or “Add-Ons” offering pirated content can be easily loaded onto ISDs or even a smart phone, computer or tablet. Many have plugins that are designed to scrape the internet and pull together sites that host infringing content, making it effortless for users to access any content anytime. The affordable pricing of these invariably Chinese made boxes (some as low as $20) and free content on demand is irresistible. They are now found across the region.

The case was brought by a coalition of the largest copyright holders in Singapore. With a sophisticated court system, Singapore is often a good place to bring test cases in Asia. Its copyright laws were amended in 2014 to allow for copyright holders to apply for blocking orders from the Court against Network Service Providers/ISPs.

However although the links in the Apps were blocked, the ISD hardware and Apps themselves are not. By disabling online locations with functionalities to access infringing content, the Apps are heavily disrupted. But they are software so can quickly be updated or new Apps made available.

The Singapore case is consistent with Australian Federal Court judgments blocking online locations with functionalities that facilitate copyright infringement. This all illustrates the continuing uphill battle against digital pirates who are constantly evolving to find ways to offer infringing content using the latest technology.

Thursday, November 22, 2018

Digital commerce in SEA

Image result for ecommerce

The digital economy is booming in SE Asia. A report called E-Conomy SEA 2018 by Google and Temasek about ride hailing apps, online media, online travel and e-commerce makes in SE Asia has some interesting facts and predictions:
  • 350m SEA digital consumers in 2018 in a $72Bn E-Conomy, expected to reach $240bn by 2025
  • Indonesia’s e-commerce sector dominates the SEA region at $27bn in value; Vietnam has the largest e-commerce share of total GDP at 4%
  • 41% of travel is booked online now, due to rise to 57% by 2025
  • Online media – gaming, ads, gambling and subscription music & video is growing by 24% p.a. in SE Asia
  • Ride hailing and food delivery are with 26% growth with Indonesia tha largest and fastest growing
  • VC funding is booming - 2,000+ internet companies got funding of over $7 bn over 3 years (record $1.4 bn in 2018)
  • Unicorn companies include Bukalapak, Lazarda, Go-Jeck, Grab, Tokopedia Razer, VNG, Traveloka. Only Lazarda has been through an exit (trade sale to Alibaba)
  • Fintech is attracting a great deal of new interest; Medtech, digital education and social commerce will grow too
  • Singapore HQ and Indonesian companies got the most investments
  • Improvements: Mobile data costs falling, consumer trust growing, skilled talent pool bigger
  • Challenges: logistics still hard, disparate payment systems
For everyone involved there is massive excitement and the hope that such a huge sectoral growth can buoy SEA economies for some years.