The resolution, which was supported by 102 national delegations with 10 voting against, is one of four that are being voted on during the Congress, which is being held this week.
The resolutions are the result of research on the law in many different countries, and recommend common ground to promote harmonisation of laws.
The paragraph on compulsory licensing in the resolution proved one of the most controversial aspects, with the US delegation initially proposing that it be deleted on the grounds that “it would put AIPPI on record as supporting compulsory licensing” and could be interpreted as “applying to all products”.
However, yesterday delegates agreed on a revised wording stating: “Concerning public health: (a) the patent law should provide that a compulsory licence can only be granted in exceptional and strictly defined circumstances; (b) the law should not permit expropriation of patent rights.”
The delegates also approved a paragraph saying that Article 31bis of the TRIPs Agreement (which implements the Doha Decision on compulsory licensing) “should be promptly ratified by WTO Members that have not yet done so”.
The paragraph on experimental use says that patent laws should allow experiments “irrespective of whether the ultimate aim of the experiments may be commercial”. Working committee chair Sarah Matheson said that, while broad, this was the most practical wording: “In the modern world, few if any experiments are pure intellectual curiosity.”
The resolution said that patent laws should provide an exception “for acts necessary for the purpose of obtaining regulatory approval” for medicines and other specified medical products. It also confirmed previous AIPPI resolutions rejecting international exhaustion in patent law.
Delegates also yesterday agreed a resolution on how damages are assessed in trade mark infringement, counterfeiting and piracy cases.
They resolved that damages for trade mark violations should allow the trade mark owner to recover and remedy all injury caused and deter future violation. The resolution said: “The evaluation of damages for trademark violations should be assessed primarily on the basis of objective economic considerations.”
The resolution set out the principles on which damages should be awarded. The damages awarded should remedy the injury suffered by the trade mark holder and provide deterrence against future violations. The resolution also allows for the possibility for enhanced damages and statutory damages in cases of “grossly negligent or bad faith violations” and “especially serious types of infringement”.
Paragraph 4 of the resolution set out the types of evidence that should be used to determine damages awards, as well as the evidence of financial gains related to the infringer and, if a royalty calculation is used, reasonable royalties in analogous situations. The resolution also set out that infringers should be obliged to provide the relevant evidence, subject to confidentiality protections.
Two more resolutions are due to be voted on today (Tuesday). Once formally approved on Wednesday, the full resolutions will be available on the AIPPI website.
