Joshua Sarnoff

Joshua Sarnoff

  • Joined: June 13, 2013
  • Articles: 3

Injunctive relief after the WTO’s refusal to adopt the India-South Africa COVID-19 Waiver Proposal

[Joshua Sarnoff] As the world confronts the third wave of the COVID-19 pandemic, the WTO’s TRIPS Council has rejected the proposal by India and South Africa for the WTO to temporarily waive the intellectual property rights requirements of the TRIPS Agreement in regard to copyrights, industrial designs, patents, and trade secrets. Notwithstanding, countries will continue to exercise TRIPS flexibilities in regard to IPRs that affect their ability to respond to COVID-19.

TRIPS Flexibilities on Patent Enforcement: Lessons from Some Developed Countries Relating to Pharmaceutical Patent Protection

[Joshua Sarnoff] Authority for national judiciaries to issue permanent and preliminary injunctions is required by the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), Articles 44 and 50. But the TRIPS Agreement does not require the issuance of injunctions in any particular circumstances, and does not harmonize the laws on which national jurisdictions derive their injunctive relief authorities. Thus, countries remain free to refuse prohibitory injunctive relief for adjudicated or likely patent infringement, particularly if “reasonable compensation” is offered in the form of an “ongoing royalty” or an “interim royalty” payment, which acts similarly to a compulsory license.