Manuel Lousada Soares

Ministry of Development, Industry and Foreign Trade of Brazil

Secretary for Industrial Technology

IPR ISSUES IN IPR ISSUES IN STANDARDIZATIONSTANDARDIZATION

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BEIJINGBEIJING APRIL 17, 2007 APRIL 17, 2007

Globalization

The new The new frontiersfrontiers

Global Global marketsmarkets

Global Global productionproduction

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Where is the problem?• When a company protects an innovation and

uses their own technical standards? Of course not!

• When a companies’ consortia do the same and promotes their own standards around the world? Probably not!

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The problem arises in a much wider perspective: when we The problem arises in a much wider perspective: when we consider national, regional or international consensus consider national, regional or international consensus standards. Because the rationale of these standards is standards. Because the rationale of these standards is

directly related with public interest issuesdirectly related with public interest issues

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The use of national or international The use of national or international standards in technical regulationsstandards in technical regulations

• It is widely accepted as a good practice for technical regulation (Brazil is preparing his own Good Practices Guide)

• It is one of the basic rules of WTO’s TBT (Technical Barriers to Trade) Agreement

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Whenever a technical regulation is prepared, adopted or applied for one of the legitimate objectives explicitly mentioned in paragraph 2, and is in

accordance with relevant international standards, it shall be rebuttably presumed not to create an unnecessary obstacle to international trade

TBT Agreement

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To avoid conflict…• ISO/IEC orientation is to avoid inclusion, in

international standards, of items covered by patent rights

If, in exceptional situations, technical reasons justify such a step, there is no objection in principle to preparing an International Standard in terms which include the use of items covered by patent rights – defined as patents, utility models and other statutory rights based on inventions, including any published applications for any of the foregoing – even if the terms of the standard are such that there are no alternative means of compliance

ISO/IEC Directives — Part 1: Procedures, 2004

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If, in exceptional situationsin exceptional situations, technical reasons justify such a step, there is no objection in principle to preparing an International Standard in terms which include the use of items covered by patent rights – defined as patents, utility models and other statutory rights based on inventions, including any published applications for any of the foregoing – even if the terms of the standard are such that there are no alternative means of compliance

ISO/IEC Directives — Part 1: Procedures, 2004

• Standards, and of course technical regulations, must specify performance, and not product description

• Technical regulation can be based on parts of an international standard and exclude technical solutions protected by patents

To avoid conflict…

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2.8 Wherever appropriate, Members shall specify technical regulations based 2.8 Wherever appropriate, Members shall specify technical regulations based on product requirements in terms of performance rather than design or on product requirements in terms of performance rather than design or descriptive characteristics. descriptive characteristics. TBT AgreementTBT Agreement

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Brazil supports…• The enforcement of international standardizing

systems, such as ISO• The use of IPR tools to protect industrial and

intellectual property (intangible assets)• Un effort towards a more effective collaboration

between ISO/IEC and relevant standardizing bodies (the good example of Vienna Agreement)

• The use of new deliverables of ISO/IEC in order to accelerate international bodies’ response to technological development speed, especially in high tech areas

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Brazil suggested…• At WTO, Brazil proposed the inclusion of a footnote

in the 4th Triennial TBT Review report (G/TBT/19): “A list of documents submitted and discussed during the Fourth Triennial Review is contained in Annex 1. This Annex constitutes an integral part of this Report.”

• This proposal was accepted. China’s documents (IPR Issues in Standardization – G/TBT/W/251 and G/TBT/W/251/Add.1) are part of the list.

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Brazil suggests…• An accurate analysis, by ISO/IEC, of current concrete

situation, mainly in certain sectors/areas considered more vulnerable (mainly IT)

• Report by ISO/IEC to WTO/TBTC• Consideration, by ISO/IEC, of possible solutions

keeping in mind the appropriate use of international standards as a basis for WTO members technical regulations - future guidance

• Cooperation, on this issue, between ISO/IEC and WIPO• Cooperative work in order to reach more objective

understanding of “reasonable and non discriminatory” – RAND – approaches to be used by standardizing bodies

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Brazil expects…• Governments to strongly support international

standardizing systems through domestic standardizing and technical regulation policies

• An effective effort towards convergence related to terms and definitions (not only between TBT and ISO Guides and Standards, but also among WTO Agreements, such as SPS and GATS)

• An increased use of a tech blocks philosophy, based on international standards, that may be used in several technological applications

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Brazil also expects…• That all efforts to be done in this field may That all efforts to be done in this field may

lead to a refinement and increasing lead to a refinement and increasing acceptance of international standardizing acceptance of international standardizing systems, not only on account of their intrinsic systems, not only on account of their intrinsic importance, but also because they are the importance, but also because they are the basis for technical regulations harmonization basis for technical regulations harmonization around the World and are opened for every around the World and are opened for every country participation. country participation.

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ObrigadoObrigado Thank you ObrigadoObrigado Thank you

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