Experts participating in a panel discussion have called upon countries to be flexible in regulating the licensing of technology and intellectual property to fit their domestic priorities and their relative levels of development.

They urged countries to adopt the Japanese module in licensing such intellectual property-related agreements.

The Japanese Fair Trade Commission (JFTC) in the immediate post-war era, took a formal approach to the examination of possible restraints on competition in licensing agreements, emphasizing the per se illegality of certain clauses, such as the obligation by the licensee to grant back to the licensor any IP developed during the term of the license.

The panel discussion jointly organized by the N Conference on Trade and Development (UNCTAD) and the International Centre for Trade and Sustainable Development (ICTSD) was introduced by Kiyoshi Adachi, Chief, Intellectual Property Unit, Division on Investment & Enterprise at UNCTAD, and chaired by Pedro Roffe, Senior Associate, Programme on Innovation, Technology and IP, of the ICTSD.

The discussion drew upon a draft paper by Professor Hiroko Yamane of Teikyo University.

In a presentation, Professor Yamane highlighted the gradual shift in the approach taken by the (JFTC) to the regulation of technology licensing agreements.

This approach, which tended to favour the (mostly Japanese) licensee over the (mostly foreign) licensor was part of a coordinated effort within Japan?s policy to promote domestic incremental innovation.

However, in the 1980s and 1990s as Japan?s technological capacities developed into more sophisticated product innovation, the JFTC adopted a less formal approach and applied a ?rule of reason? analysis, following the example set by the United States since the early 1980s.

A September 4, 2012 statement issued by UNCTAD said the panellists discussed to what extent the Japanese experience could be relevant for developing countries and agreed that countries should have the flexibility to use approaches that seem to fit their domestic priorities and their relative levels of development.

Professor Denis Barbosa, Attorney and Professor, Catholic University of Rio de Janeiro, stressed the fact that Brazil has followed the example set by the Japanese experience.

Anthony Taubman, Director of the Intellectual Property Division, World Trade Organization, emphasized that to use a rule of reason approach, capacities in developing countries would need to be built up.

For Padmashree Gehl Sampath, Division on Technology and Logistics at UNCTAD, he  considers the Japanese experience as providing some important lessons as to the integration of competition policies within the countries? overall science and technology framework.

By Ekow Quandzie

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