Chinese courts began to issue anti-suit injunctions (ASIs) in 2020 against litigants in foreign courts that had filed lawsuits to obtain a FRAND rate setting. Although these ASIs are a legal “transplant” from common law countries, they may also be viewed as “false friends” with significant differences from the jurisdictions from which they were imported. Several distinct vectors stand out: (a) China’s ASI practice and Chinese industrial policies are closely integrated into China’s domestic efforts to become an innovative power and standard essential patent (SEP) litigation norm setter; (b) China’s ASI efforts are part of a continuum of decades-long efforts to exert greater international influence, including in “judicial sovereignty” and global FRAND rate setting; and (c) the lack of transparency around China’s ASI practices, including the small and incomplete cohort of published cases, an apparent slow-down in recent ASI decisions, and Chinese traditions of experimentation in intellectual property (IP) legislation and practice, make it difficult at this time to determine how China’s ASI regime will further evolve into a system that is more compatible with other countries. This chapter more generally contributes to discussions around the appropriability of IP-related legal transplants into China by proposing that the differences between Chinese practices and practices in foreign countries may often be more significant than surface similarities.

Given the strong public health, societal, and economic benefits associated with the availability and widespread use of vaccines, an ideal scenario would dictate that vaccines needed to prevent and mitigate public health crises be treated as R&D priorities. Both domestic and international innovation policies would prioritize their development, and there would be mechanisms in place to ensure an equitable distribution of these vaccines. In practice, that is not the case.

This chapter provides a summary of the key arguments made in this book. Crucially, the regulatory theory of patent law, which adopts a socio-centric approach to patent law, permits the incorporation of a model of human rights into a country’s patent law system. The model of human rights demands that any regulatory instrument implemented by a state must not constitute a breach of its international human rights obligations. The incorporation of a model of human rights into the design, implementation, interpretation, and enforcement of their national patent laws will help developing countries to preserve their patent policy space and secure access to affordable medicines for poor patients in their countries.

This chapter begins by introducing the problem of access to affordable medicines in developing countries. It describes the patent policy space available to states prior to the adoption of the TRIPS Agreement and the attempts made by developing countries to reclaim their patent policy space after the adoption of the TRIPS Agreement via the Doha Declaration on the TRIPS Agreement and Public Health. It notes that the Doha Declaration only yielded marginal gains in the form of the confirmation of the flexibilities that are already contained in the TRIPS Agreement and the introduction of a waiver system that is more burdensome and less beneficial. Nevertheless, the chapter contends that paragraph 4 of the Doha Declaration provides a linchpin that developing countries can use to preserve their patent policy space as it sanctions the incorporation of a right to health perspective, and invariably the incorporation of a model of human rights, into the design, implementation, interpretation, and enforcement of their national patent laws. The chapter also presents a roadmap for the rest of the book.

This chapter answers two key questions, integral to the issues addressed in this book. First, are patent rights human rights under international human rights law? Second, is the incorporation of a model of human rights compatible with the TRIPS Agreement? The answers will determine whether developing countries can successfully incorporate a model of human rights into the design, implementation, interpretation, and enforcement of their national patent laws. Section 3.2 examines the human right to health under international law. Section 3.3 provides an analysis of the nature of the relationship between patent rights and the right to health under international human rights law and answers the first key question. Section 3.4 examines the extent to which the TRIPS Agreement permits developing countries to fulfil their right to health obligations and answers the second key question. The chapter concludes with the view that patent rights should not be considered as human rights under international human rights law and that the model of human rights is compatible with the TRIPS Agreement. Thus, there is nothing that prohibits a developing country from insisting on the primacy of human rights obligations when attempting to resolve the tension between patent rights and the right to health at the national level.

This chapter examines the relevant international law framework. Particular focus is given to the provisions of international intellectual property law, notably the TRIPS Agreement. The notion of minimum standards embedded in TRIPS is examined, with particular attention given to those aspects of the minimum standards impacting on the interoperability standard-setting landscape. The general lack of corresponding maximum standards is noted. Key flexibilities embedded in TRIPS are then discussed. The chapter then examines other provisions of international economic law with potential to address concerns associated with access to interoperability standards and SEIP: the WTO Agreement on Technical Barriers to Trade (TBT Agreement), the WTO Telecommunications Agreement (notably the GATS Telecommunications Annex and Reference Paper) and the WTO Informational Technology Agreement; international dimensions of competition law are also considered. The chapter concludes that there is no international agreement that is presently well-suited to address concerns associated with access to interoperability standards and SEIP.

Having developed a suitable normative approach, this chapter considers how best to achieve this, in light of current international law. A variety of legal modalities (treaty or soft law), fora (e.g. existing or standalone forum) and drafting approaches (multi-stakeholder or expert-led) are considered. An international expert-led soft law approach, outside the auspices of any existing international body, is recommended in the first instance, noting that, in due course, a more permanent forum may be warranted and that, indeed, binding treaty approaches may also be contemplated in the longer term. It is finally considered whether such an approach would remain consistent with existing international law, notably international intellectual property law. It is concluded that the proposed approach would be fully consistent with existing international law.

This chapter summarized the relevant concerns, the methodology applied and the salient conclusions, and recommends the development an international expert-led soft law instrument dealing with access to interoperability standards and SEIP.

In Chapter 7 on trade-related aspects of traditional knowledge protection, Oluwatobiloba Moody looks at the proliferation of provisions related to traditional knowledge and genetic resources in trade agreements. He questions whether trade agreements are the correct instrument to protect traditional knowledge particularly from biopiracy and other abuses. Although he argues that trade agreements could play an important role in addressing key aspects of traditional knowledge protection, he suggests that such protection should not occur in a vacuum. These provisions should rather complement and/or reinforce the international commitments and/or domestic frameworks of negotiating parties. The misappropriation and commodification of traditional knowledge through trade agreements must be pursued with caution, by parties to international trade agreements and by Indigenous peoples. Protection of traditional knowledge must involve consultation with Indigenous groups to ensure that these new provisions in trade agreements do not abrogate their established rights.

Consumer law and policy generally envisages that consumer interests are best advanced by prohibiting abusive marketplace practices and promoting competition. This chapter proposes the framework be sophisticated for the provision of professional health services. Arguably, universal access to health services is a basic human right. Thus, the consumer interest is best understood within a human rights and a marketplace framework. These two frameworks do not always sit comfortably together, as illustrated in this chapter. The chapter explores the impacts of ASEAN’s market liberalisation strategies upon the delivery of professional health services. One strategy involves regional mutual recognition of health qualifications. This could enhance consumer interests by increased movement of medical practitioners to areas of regional need. Conversely, it could lead them to shift from low-income countries where universal access needs are acute to countries where practitioners receive higher incomes. The chapter concludes with an examination of how ‘health tourism’ is being promoted by some ASEAN members for economic benefit. However, these apparent benefits maybe somewhat illusory.