[A2k] Talking up Review of Nuno Pires de Carvalho book

[Miles Teg]

Sunday, 31 August 2008
More recent books reviewed

Always an enthusiast for IP as it is affected by real trade issues, the
IPKat was unashamedly excited at the prospect of getting his paws on the
TRIPS Regime of Antitrust and Undisclosed Information, by the eminent
scholar and gentleman Nuno Pires de Carvalho.

What the publisher's blurb says:

"In this brilliantly conceived and authoritative work the eminent
intellectual property specialist Nuno Pires de Carvalho focuses on the
mechanisms, obligations, and opportunities of trade secret protection
under the Agreement on Trade-Related Aspects of Intellectual Property
Rights (TRIPs). With the powerful knowledge base derived from his long
experience both at the World Trade Organization (WTO) and the World
Intellectual Property Organization (WIPO), he illuminates the crucial
relationship of antitrust and industrial property, clearly demonstrating
=96 in contrast to much "received wisdom" =96 the intrinsic pro-competitive
nature of intellectual property and of industrial property in
particular. Using an extraordinary wealth of practical detail, and
offering hundreds of pointed hypothetical and actual examples, Pires de
Carvalho dispels the murkiness around such essential concepts and
provisions as the following:

* the inevitable interdependence of industrial property and antitrust law;
* abuses of patent rights and the vexed issue of patents and monopolies;
* the legal implications of international exhaustion under Article 6;
* the meaning of "balance of rights and obligations" under Article 7;
* divestiture and the fruits doctrine under Article 32;
* international cooperation in identifying antitrust violations in
licensing agreements;
* protection of confidential information in court proceedings;
* protection of undisclosed test data against unfair commercial use
under Article 39.3;
* the WTO Dispute Settlement Mechanism in the context of undisclosed
information.

... It combines an easy-to-follow article-by-article commentary on the
TRIPs Agreement with a theoretical scholarly analysis that makes of it
an invaluable resource to all those who wish to understand industrial
property rights at a deeper level. Lawyers, judges, scholars and
government officials will find an abundance of information and legal
analysis here that will help them identify antitrust issues and
solutions to problems of trade secrets posed by the implementation of
the TRIPs Agreement".

The IPKat, being a believer in the interdependence of industrial
property and antitrust law, needed little convincing about the central
core of the author's thesis. Nor did he need reminding that
international exhaustion of IP rights is not the end of the world for IP
owners, who are perfectly capable of achieving measures of protection
even when they cannot prevent their own lawfully-made products coming
back home to roost. Accordingly he was naturally sympathetic to this
book -- which goes way beyond the narrow themes suggested by
"undisclosed information" alone. He is also impressed at the trouble
that the author has taken in looking over the parapet of international
IP law and fixing his analytical gaze on real provisions of national law
and indeed literature.

The arrangement of this book is also clever, promoting the analysis of
Article 40 (Control of Anticompetitive practices in contractual
licences) ahead of the main course, as it were, of Article 39
(protection of undisclosed information itself) since the contract is the
most effective means of (i) disclosing undisclosed information while
still keeping control of it or (ii) restricting the ability of another
to compete -- depending on your bias. The IPKat hopes that, when the
next edition of this book is published, the author won't feel obliged to
be quite so polite and objective, though, and that he will allow himself
the luxury of a little rant about the need to persuade people that TRIPs
and the Paris Convention actually exist on the same planet and that you
don't have to choose one in preference over the other if you can make
them pull together.

Bibliographic data: Publisher: Kluwer Law International, 2008. ISBNs
9041126430 and 13 9789041126436. Hardcover, xiv + 404 pages. Price =A389.
Rupture factor: moderate. Book's web page here.




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