Official IPR

Rentschler/Rentschler Page 1 of 57
IPR Negative Arx Axiom/Vector
OPENERS.......................................................................................................................................................4
ABRAHAM LINCOLN..........................................................................................................................................4
T.J. (THOMAS JEFFERSON)................................................................................................................................4
KRITIK: HR TRIVIALIZATION................................................................................................................4
LINK: TREATING IPR AS HR TAKES AWAY THE ESSENTIAL NATURE OF HR.............................................................4
1. VALUE CONFLICT..................................................................................................................................4
1. IPR =/= HR..............................................................................................................................................4
A. Increased TRIPS and TRIPS plus violate human rights....................................................................4
B. Basic IPR enforcement treaties treat IPR as nothing more than an economic tool – not a HR........6
C. Human Rights is not a justification for IPR protection.....................................................................6
D. Original meaning of all their evidence saying that IPR = Human Right..........................................7
E. UN: IPR rights conflict with Human Rights.......................................................................................7
F. TRIPS creates inferior classes of people............................................................................................8
G. Increased TRIPS and TRIPS plus violate human rights....................................................................8
H. There is conflict between IPR and HR...............................................................................................9
I. Human rights are non-transferable (IPR is).......................................................................................9
J. The inclusion of intellectual property protection in human rights would undermine the claim that
human rights are of fundamental importance to humanity..................................................................10
K. IPR is different from normal property rights...................................................................................10
2. ALTERNATE SOLUTION: ALLOW UN TO PROTECT IPR THROUGH HR CONTEXT...................................................11
A. Better solution: allow the UN to enforce within the parameters of HR...........................................11
B. UN is a better solution.....................................................................................................................12
3. DISADVANTAGES..................................................................................................................................13
1. MONOPOLIES.............................................................................................................................................13
Link: IPR creates monopolies...............................................................................................................13
Impact: Monopolies increase inefficiency and prices......................................................................................13
Impact support: Monopolies increase prices lower output(decreasing jobs) and without innovation..............14
AT: “Where are the monopolies?”.......................................................................................................14
Monopoly example: Microsoft........................................................................................................................14
Monopoly example: Microsoft decreasing innovation....................................................................................15
Monopoly example: Microsoft: “new” innovations only based on strengthening their monopoly, not
consumer demand for new products................................................................................................................15
Microsoft example: Decided in court: Microsoft = monopoly........................................................................16
Microsoft example: Decided in court: Microsoft = monopoly........................................................................16
Extent of Microsoft: Power to control prices..................................................................................................16
Example of monopoly: Automobile industry before Ford...............................................................................17
Example of monopoly: Human genome patent/Myriad...................................................................................18
Monopoly example: Turmeric.........................................................................................................................19
Monopoly example: Airplanes........................................................................................................................20
AT: Flexibilities in AIDS meds: ...........................................................................................................21
A. There are inflexibilities in the flexibilities..................................................................................................21
B. US threatens action against countries that use flexibilities.........................................................................21
AT: “Innovation from TRIPS will solve”.............................................................................................22
A. Enforcing TRIPS will not solve AIDS meds..............................................................................................22
B. Drug companies don’t spend on research for diseases in developing countries..........................................22
2. AIDS DRUGS............................................................................................................................................23
Link: India produces AIDS meds..........................................................................................................23
A. India is a major exporter of AIDs medication............................................................................................23
Brink: TRIPS/IPR takes away vital AIDS drugs...................................................................................23
A. IPRS take away access to lifesaving drugs for billions of people...............................................................23
B. Increased patent protection can reduce availability of medicines...............................................................24
C. IPR increases prices on AIDs drugs which places them out of the reach of Africa.....................................24
Impact: Death ......................................................................................................................................25
A. A hike in prices will cause thousands of death...........................................................................................25
1
B. TRIPS increases drug costs........................................................................................................................25
C. Stronger IPR enforcement would negatively impact public health.............................................................26
D. Patent right Drugs are out reach of most sick Africans...............................................................................26
E. Under the status-quo current institutions Patents prevent people from obtaining drugs they need to Survive
........................................................................................................................................................................27
F. IPR signs death warrants for thousands......................................................................................................27
G. TRIPS stops people from buying lifesaving drugs.....................................................................................28
3. INNOVATION HURT......................................................................................................................................28
Link: AFF enforce IPR.........................................................................................................................28
Link: IPRS restrict knowledge and innovation.....................................................................................28
Impact: Innovation is the key to the World Econ.................................................................................29
Link support:.........................................................................................................................................29
A. IPRS slow innovation by taking away funding...........................................................................................29
5. AFFIRMATIVE HARMS........................................................................................................................30
1. AT: COURTS INEFFICIENT............................................................................................................................30
A. India can afford to fund judicial systems on its own........................................................................30
B. New developments: India can handle IPR now!..............................................................................30
C. Takes only three months for these cases to be tried.........................................................................31
6. SIGNIFICANCE.......................................................................................................................................32
1. IPR DOES NOT CREATE INNOVATION..............................................................................................................32
A. Patents don’t protect most important discoveries............................................................................32
B. Other ways to gain innovation.........................................................................................................32
C. Most innovation is not through IPR but through academia and government..................................33
D. IPR didn’t increase Microsoft innovation.......................................................................................34
E. The last 219 years have proved that IPR does not increase innovation..........................................35
F. An absence of patent protection could increase innovation in the software industry by 15%........36
7. SOLVENCY..............................................................................................................................................37
1. INDIA REJECT.............................................................................................................................................37
A. Current threat of sanctions is not enough to effect change..............................................................37
B. U.S. already offer cooperation.........................................................................................................37
2. ECONOMY.................................................................................................................................................38
A. Competition......................................................................................................................................38
- IPR supports uncompetitive policies.............................................................................................................38
3. SANCTIONS FAIL.........................................................................................................................................39
A. General.............................................................................................................................................39
- External pressure fails to increase Indian IPR enforcement..........................................................................39
B. GSP...................................................................................................................................................39
- The economic costs of ending preferential treatment is small.......................................................................39
- GSP sanctions against India only hardened their opposition.........................................................................40
-Argentina was willing to hold out against U.S. GSP sanctions......................................................................40
-Brazil is an example of a country that didn’t bend under threats of GSP sanctions........................................41
C. 301 process......................................................................................................................................42
-Precedent: Listing on 301 Watch List did not discourage investment in India. ................................42
-Special 301 deals with intellectual property rights and includes a “watch list” .............................................42
-Background Information about Special 301 Process......................................................................................43
-Argentina and Brazil were not affected by Special 301 Scrutiny...................................................................43
-Evidence Challenges the Assumption that Special 301 Process is Effective .................................................44
4. CORRUPTION..............................................................................................................................................44
A. Corruption hinders IPR enforcement...............................................................................................44
B. Corruption plagues India’s courts...................................................................................................45
C. Indian Judiciary is extremely corrupt..............................................................................................45
D. There are Millions of dollars being paid to Government officials for corruption..........................45
E. Impeachment of corrupt judges is nearly impossible.......................................................................45
F. When allegations are brought forward, they are dealt with by more corruption............................46
2
5. INDIAN RESEARCH FAIL – NO “LIFE-SAVING TECHNOLOGY”................................................................................46
A. Indian research is not effective........................................................................................................46
B. TRIPS decrease knowledge flow to india.........................................................................................47
8. CP’S...........................................................................................................................................................48
1. PRIZE SYSTEMS...........................................................................................................................................48
1. Reasonable Counterplan Criterion Met...........................................................................................48
I. Non-Topical.................................................................................................................................................48
II. Mutually Exclusive....................................................................................................................................48
III. Provides a Comparative Advantage..........................................................................................................48
2. IPR is unneeded ...............................................................................................................................49
A. Ideas can be protected without IPR............................................................................................................49
3. A Reward System Would Be a Net Benefit........................................................................................50
A. Prize system...............................................................................................................................................50
B. CP solves monopolies................................................................................................................................50
C. Possible alternative solutions......................................................................................................................51
D. Prize system CP.........................................................................................................................................52
E. Funding for prize system............................................................................................................................52
F. There other more beneficial ways of rewarding innovators........................................................................53
G. A reward system would have a net benefit over IPR..................................................................................53
H. Rewards are better than IPR.......................................................................................................................54
I. A reward system would be far more beneficial than IPR (cheaper prices) [Link to AIDs DA]....................54
J. Reward system equals more innovation ......................................................................................................54
K. Historical precedent: Prizes work...............................................................................................................55
L. Patents create insufficient incentives for original research.........................................................................55
M. Rewards encourage innovation..................................................................................................................56
N. Historical Precedent: Rewards encourage innovation.................................................................................56
9. SOURCE INDICTS..................................................................................................................................57
1. ALL AFF SOURCES.......................................................................................................................................57
Most advocates for AFF are special interest companies......................................................................57
3
Openers
Abraham Lincoln
“Whenever there is a conflict between human rights and property rights, human rights
must prevail”
T.J. (Thomas Jefferson)

“Knowledge is like a candle: when one candle lights another it does not diminish the light
of the first candle.”
KRITIK: HR trivialization
Link: Treating IPR as HR takes away the essential nature of HR
Peter K. Yu [Kern Family Chair in Intellectual Property Law & Director, Intellectual
Property Law Center, Drake University Law School; Visiting Professor of Law, Faculty
of Law, University of Hong Kong; Research Fellow, Center for Studies of Intellectual
Property Rights, Zhongnan University of Economics and Law.] “TEN COMMON
QUESTIONS ABOUT INTELLECTUAL PROPERTY AND HUMAN RIGHTS” October
13, 2008 Georgia State University Law Review, Vol. 23, 2007, pp. 709-53 [EG] <accessed
March 30, 2009> http://ssrn.com/abstract=1090241
“As some commentators point out, the inclusion in the human rights debate of a
relatively trivial item like intellectual property protection would undermine the claim that
human rights are of fundamental importance to humanity.12 Such inclusion may also
revive the old, and somewhat lingering, debate about whether economic, social, and
cultural rights should be considered as significant as civil and political rights, or the so-
called “first generation” human rights.13”
1. Value conflict
1. IPR =/= HR
A. Increased TRIPS and TRIPS plus violate human rights
MINNESOTA INTELLECTUAL PROPERTY REVIEW 2003 “Human Rights and
Intellectual Property: Conflict or Coexistence?” Laurence R. Helfer Fellow, Program in
Law and Public Affairs, Princeton University and Professor of Law and Lloyd Tevis
Fellow, Loyola Law School, Los Angeles. http://papers.ssrn.com/sol3/papers.cfm?
abstract_id=459120(CR)
“This leads to a third consequence of the new intersection between human rights and
intellectual property – the articulation of “maximum standards” of intellectual property
protection. Treaties from Berne to Paris to TRIPS are all concerned with articulating
4
“minimum standards.”48 But higher standards are not considered problematic, and
nothing in the treaties prevents governments from enacting more stringent domestic
intellectual property laws, or from entering into agreements that enshrine such
standards.49 Indeed, since TRIPS entered into force, the United States and the EC have
negotiated so-called “TRIPS plus” bilateral agreements with many developing
countries.50 These treaties impose higher standards of intellectual property protection
than TRIPS requires.51 The U.N. High Commissioner for Human Rights and the WHO
have voiced strong objections to “TRIPS plus” treaties on human rights grounds.52
Together with the particularization of soft law norms discussed earlier,53 these objections
may, for the first time, begin to impose a ceiling on the upward drift of intellectual
property standards that has accelerated over the past few decades.”
5
B. Basic IPR enforcement treaties treat IPR as nothing more than an economic tool
– not a HR
abstract_id=459120 (CR)
“Nor was human rights law’s nominal interest in intellectual property reciprocated by the
intellectual property regime. No references to human rights appear in the major
intellectual property treaties such as the Paris and Berne Conventions, or in the more
recently adopted TRIPS Agreement.8 These treaties do refer to the protections granted to
authors and inventors as “rights.”9 But the principal justification for these agreements
lies not in deontological claims about inalienable liberties, but rather in economic and
instrumental benefits that flow from protecting intellectual property products across
national borders.10”
C. Human Rights is not a justification for IPR protection

For advocates of intellectual property protection, by contrast, the central focus of

international lawmaking was twofold: first, the gradual expansion of subject matters and
rights through periodic revisions to the Berne, Paris and other conventions, and later, the
creation of a link between intellectual property and trade.14 Human rights law added
little to these two enterprises. It provided neither a necessary nor a sufficient justification
for strong, state-granted intellectual property monopolies (whether bundled with trade
rules or not). Nor, conversely, did it function as a potential check on the expansion of
intellectual property law.
6
D. Original meaning of all their evidence saying that IPR = Human Right
Beginning in the early 1990s, the U.N. human rights machinery began to devote
significant attention to the rights of indigenous communities.18 Among the many claims
that these peoples demanded from states was the right to recognition of and control over
their culture, including traditional knowledge relating to biodiversity, medicines, and
agriculture.19 From an intellectual property perspective, much of this knowledge was
treated as part of the public domain, either because it did not meet established subject
matter criteria for protection, or because the indigenous communities who created it did
not endorse private ownership rules.20 But by treating traditional knowledge as
effectively un-owned, intellectual property law made that knowledge available for
unrestricted exploitation by outsiders.21 Many of these outsiders used this knowledge as
an upstream input for later downstream innovations that were themselves privatized
through patents, copyrights, and plant breeders’ rights.22 Adding insult to injury, the
financial and technological benefits of those innovations were rarely shared with
indigenous communities.23
E. UN: IPR rights conflict with Human Rights

“The U.N. human rights system turned its attention to TRIPS in 2000, just when the
treaty’s transitional periods were expiring for developing countries.32 In August of that
year, the Sub-Commission on the Promotion and Protection of Human Rights adopted
Resolution 2000/7 on Intellectual Property Rights and Human Rights.33 The resolution
adopts an antagonistic approach to TRIPS. It stresses that “actual or potential conflicts
exist between the implementation of the TRIPS Agreement and the realization of
economic, social and cultural rights.”34 These conflicts cut across an exceptionally wide
swath of legal terrain, including: (1) the transfer of technology to developing countries;
(2) the consequences for the right to food of plant breeders’ rights and patenting of
genetically modified organisms; (3) bio-piracy; (4) control of indigenous communities’
natural resources and culture; and (5) the impact on the right to health from restrictions
on access to patented pharmaceuticals.35”
7
F. TRIPS creates inferior classes of people
“A second paradigm shift that may emerge is the treatment of consumers of intellectual
property products as the holders of internationally guaranteed rights. In the world of
TRIPS, the producers and owners of intellectual property products are the only “rights”
holders.47 Individuals and groups who consume those products are allocated the
(implicitly) inferior status of users. A human rights approach to intellectual property, by
contrast, grants these users a status conceptually equal to owners and producers. This
linguistic reframing is not simply a matter of semantics. It also shapes state negotiating
strategies. By invoking norms that have received the imprimatur of intergovernmental
organizations in which numerous states are members, governments can more credibly
argue that a rebalancing of intellectual property standards is part of a rational effort to
harmonize two competing regimes of internationally recognized “rights,” instead of a
self-interested attempt to distort trade rules or to free ride on foreign creators or
inventors.”
G. Increased TRIPS and TRIPS plus violate human rights

abstract_id=459120(CR)
“This leads to a third consequence of the new intersection between human rights and
intellectual property – the articulation of “maximum standards” of intellectual property
protection. Treaties from Berne to Paris to TRIPS are all concerned with articulating
“minimum standards.”48 But higher standards are not considered problematic, and
nothing in the treaties prevents governments from enacting more stringent domestic
intellectual property laws, or from entering into agreements that enshrine such
standards.49 Indeed, since TRIPS entered into force, the United States and the EC have
negotiated so-called “TRIPS plus” bilateral agreements with many developing
countries.50 These treaties impose higher standards of intellectual property protection
than TRIPS requires.51 The U.N. High Commissioner for Human Rights and the WHO
have voiced strong objections to “TRIPS plus” treaties on human rights grounds.52
Together with the particularization of soft law norms discussed earlier,53 these objections
may, for the first time, begin to impose a ceiling on the upward drift of intellectual
property standards that has accelerated over the past few decades.”
8
H. There is conflict between IPR and HR

U.C. Davis Law Review 2007 Reconceptualizing Intellectual Property Interests in a
Human Rights Framework Peter K. Yu. Associate Professor of Law & Director,
Intellectual Property & Communications Law Program, Michigan State University
College of Law; Core Faculty, Asian Studies Center & Adjunct Professor of
Telecommunication, Information Studies, and Media, Michigan State University;
Research Fellow, Center for Studies of Intellectual Property Rights, Zhongnan
University of Economics and Law. http://papers.ssrn.com/sol3/papers.cfm?
“Since the establishment of the World Trade Organization (“WTO”) and the entering into
effect of the Agreement on Trade-Related Aspects of Intellectual Property Rights2
(“TRIPS”), government officials, international bureaucrats, intergovernmental and
nongovernmental organizations, courts, and scholars have focused more attention on the
interplay of human rights and intellectual property rights. For example, the U.N. Sub-
Commission on the Promotion and Protection of Human Rights recently noted the
considerable tension and conflict between these two sets of rights. To avoid these
conflicts, the Sub-Commission recommended “the primacy of human rights obligations
over economic policies and agreements.”3 In her report assessing the impact of TRIPS on
human rights, the High Commissioner of Human Rights also reminded governments that
“human rights are the first responsibility of Governments,” citing the Vienna Declaration
and Programme of Action adopted by representatives of 171 states at the 1993 World
Conference on Human Rights.4”
I. Human rights are non-transferable (IPR is)

13, 2008 Georgia State University Law Review, Vol. 23, 2007, pp. 709-53 [EG]
<accessed March 30, 2009> http://ssrn.com/abstract=1090241
“Moreover, human rights are inalienable. While corporations may have obtained
rights from individual authors and inventors through assignment or under a work-made-
for-hire arrangement, the human-rights-based interests of these individuals are not
transferable.”
9
J. The inclusion of intellectual property protection in human rights would

undermine the claim that human rights are of fundamental importance to
humanity
13, 2008 Georgia State University Law Review, Vol. 23, 2007, pp. 709-53 [EG]
<accessed March 30, 2009> http://ssrn.com/abstract=1090241
“As some commentators point out, the inclusion in the human rights debate of a
relatively trivial item like intellectual property protection would undermine the claim that
human rights are of fundamental importance to humanity.12 Such inclusion may also
revive the old, and somewhat lingering, debate about whether economic, social, and
cultural rights should be considered as significant as civil and political rights, or the so-
called “first generation” human rights.13”
K. IPR is different from normal property rights

Duke Law Journal April, 2008 Joseph E. Stiglitz Nobel Prize in Economics in 2001
University Professor, Columbia University; chair, Columbia University's Committee on
Global Thought; co-president, Initiative for Policy Dialogue; and chairman of the board,
Brooks World Poverty Institute, The University of Manchester. ECONOMIC
FOUNDATIONS OF INTELLECTUAL PROPERTY RIGHTS [Accessed via Lexis Nexis]
(CR)
“The automobile patent illustrates two other [a] problems with the patent system: The
first is the difficulty of determining the "boundaries" of property rights. In the case of
"real" property (land), we can define the property right precisely by the geographical
boundaries. We may have to further specify whether the property right extends to mineral
rights and air rights, and whether there are public rights of way. But the limitations are
easy to specify and are well understood. In the case of intellectual property, there are no
such natural borders. Should the intellectual property right have extended to all self-
propelled vehicles, or only to those that are propelled in a particular way?”
10
2. Alternate solution: Allow UN to protect IPR through HR context

A. Better solution: allow the UN to enforce within the parameters of HR
“To address these conflicts, the Sub-Commission[on the Promotion and Protection of
Human Rights] set out an ambitious new agenda for reviewing intellectual property
issues within the United Nations,36 an agenda animated by the principle that human
rights must be given “primacy . . . over economic policies and agreements.”37 In the two
and a half years since this resolution, the U.N. human rights system has responded
enthusiastically to the Sub-Commission’s invitation by devoting unprecedented attention
to intellectual property issues. Among the most important actions have been: (1) three
resolutions of the Commission on Human Rights on “Access to Medication in the
Context of Pandemics such as HIV/AIDS;”38 (2) an analysis of TRIPS and public health
by the High Commissioner for Human Rights;39 (3) an official “statement” by the
Committee on Economic, Social and Cultural Rights that “intellectual property regimes
must be consistent with” the rights in the Covenant;40 and (4) a report by the Special
Rapporteurs on Globalization, which argues that intellectual property protection has
undermined human rights objectives.41”
11
B. UN is a better solution
“To address these conflicts, the Sub-Commission[on the Promotion and Protection of
Human Rights] set out an ambitious new agenda for reviewing intellectual property
issues within the United Nations,36 an agenda animated by the principle that human
rights must be given “primacy . . . over economic policies and agreements.”37 In the two
and a half years since this resolution, the U.N. human rights system has responded
enthusiastically to the Sub-Commission’s invitation by devoting unprecedented attention
to intellectual property issues. Among the most important actions have been: (1) three
resolutions of the Commission on Human Rights on “Access to Medication in the
Context of Pandemics such as HIV/AIDS;”38 (2) an analysis of TRIPS and public health
by the High Commissioner for Human Rights;39 (3) an official “statement” by the
Committee on Economic, Social and Cultural Rights that “intellectual property regimes
must be consistent with” the rights in the Covenant;40 and (4) a report by the Special
Rapporteurs on Globalization, which argues that intellectual property protection has
undermined human rights objectives.41 Many of these documents and reports contain
trenchant critiques of TRIPS and of expansive intellectual property rules. But some of
them also identify shared goals and other points of commonality between the two
international regimes and seek to articulate a human rights approach to TRIPS that
reconciles states’ treaty obligations.42 So as with indigenous peoples’ rights and
traditional knowledge, the two approaches to reconciling human rights law and
intellectual property law each remain in play.”
12
3. Disadvantages
1. Monopolies
Link: IPR creates monopolies
(CR)
“Free distribution, however, could cause problems for creating incentives for the
production of innovation, and that is the dynamic issue. Before turning to the question of
dynamic efficiency, though, I want to emphasize that efficiency in use means knowledge
should be freely available. The problem is that intellectual property rights circumscribe
the use of knowledge and thus, almost necessarily, cause inefficiency. Not only does
intellectual property create a distortion by restricting the use of knowledge, but it also
does something even worse: it creates monopoly power. Monopoly leads not just to
inequities but also to major distortions of resource allocations; limiting monopoly power
and its abuses is the focus of anti-trust policy. There is a quandary. We not only tolerate
this distortion and inefficiency by restricting the use of knowledge, which creates
monopoly power, but we sanction it: it is part of our legal framework because we hope it
will promote innovation.”
Impact: Monopolies increase inefficiency and prices

F. Scott Kieff [The author is Associate Professor and 2003-04 Israel Treiman Faculty
Research Fellow at Washington University School of Law and 2003-04 & 2004-05 W.
Glenn Campbell & Rita Ricardo-Campbell National Fellow and Robert Eckles Swain
National Fellow at Stanford University’s Hoover Institution; and, at the time this article
was first drafted, he was 2001-02 & 2002-03 John M. Olin Senior Research Fellow in
Law, Economics, and Business at Harvard Law School.] “The Case against Copyright:
A Comparative Institutional Analysis of Intellectual Property Regimes” October 2004
John M. Olin Program in Law and Economics Working Paper No. 297 Washington
University in St. Louis School of Law Faculty Working Paper Series Working Paper No.
04-10-01 STANFORD LAW SCHOOL [EG] <accessed March 31, 2009>
http://ssrn.com/abstract=600802
“The problem of monopolies is another specific point that must be kept in mind
when thinking about the ways markets work or don’t work within the context of IP.
Because monopolies can create important inefficiencies, they have been the subject of
substantial attention by both lawyers and economists. Indeed, the core purpose of
antitrust law is “to root out unreasonable restraints of trade and transactions that
substantially lessen competition or tend to create monopoly.”210 The central inefficiency
associated with monopolies is the creation of dead weight loss by the monopoly’s ability
to set price above marginal cost, or to have power over price.211”
13
Impact support: Monopolies increase prices lower output(decreasing jobs) and

without innovation
Joseph E Stiglitz Nobel Prize in Economics in 2001 September/16/2006 New Scientist
Brooks World Poverty Institute, The University of Manchester. “A better way to crack it”
http://web.ebscohost.com.pallas2.tcl.sc.edu/ehost/detail?
vid=11&hid=104&sid=9d0f9e32-1181-42c5-9d41 c350601fae6c@session
mgr108&bdata=JnNpdG U9ZWhvc 3QtbGl2Z Q%3d%3d#db=aph&AN=22566254
(CR)
“Monopolies can lead to higher prices and lower output, and the costs can be especially
high when monopoly power is abused, as courts around the world have found in the case
of Microsoft. What's more, the hoped-for benefit of enhanced innovation does not always
materialise.”
AT: “Where are the monopolies?”
Monopoly example: Microsoft

(CR)
“2. Leveraging Monopoly Power and Other Abuses of IPR. The efficiency costs of IPR
go beyond the direct effects associated with monopolization of the particular product
covered by the patent: Intellectual Property Rights generate monopoly power that can be
used to leverage further monopoly power. The most obvious example is Microsoft, which
has leveraged its monopoly power in operating systems to obtain a dominant position in
applications like word processing (Microsoft Office) and Internet browsers (Internet
Explorer). The courts and regulators in the United States, n23 in the European Union, n24
and in South Korea n25 have all ruled against Microsoft. There is little disagreement
about the fact that Microsoft has engaged in abusive, anticompetitive practices. The only
debate is what to do about it; because Microsoft has so much monopoly power and has
obtained such a dominant position, it is not easy to figure out how to deal with the
problem.”
14
Monopoly example: Microsoft decreasing innovation

(CR)
“3. Why Patents May Impede Innovation: Monopolization. There are other reasons that
patents may impede innovation. One is that incentives for innovation are less with
monopoly than in a more competitive marketplace. There are several reasons for this.
First, monopolists produce less - because they charge higher prices. Because they
produce less, the benefit from reducing the cost of production by a given amount is less.
n51 Moreover, monopolists do not have the spur of competition. They may realize, in
addition, that an innovation may lead to a decrease in the value of their existing capital.
Not only do monopolists have a diminished incentive for engaging in research
themselves, but monopolists can also increase their profit by discouraging innovation by
rivals and raising rivals' costs. It was, in my judgment, correctly argued that Microsoft
did exactly this. In fact, one of the charges brought against Microsoft in one state was not
only that Microsoft's behavior raised prices, but that it actually also slowed down
innovation. n52 That argument was also [*1711] an important part of the European
Union's case against Microsoft. n53 In particular, as Microsoft repeatedly demonstrated
its ability to leverage its monopoly power in PC operating systems (maintained through
IPR) into other arenas (by, for instance, squashing rival innovators like Netscape), it
discouraged innovation further. Innovators knew that if they produced a product of
sufficient import to attract Microsoft's attention, they would lose the battle with this
giant.”
Monopoly example: Microsoft: “new” innovations only based on strengthening their

monopoly, not consumer demand for new products
(CR)
“5. Distortions in the Patterns of Research. Patents may not only discourage innovation
generally, but they also may lead to a distortion in the pattern of innovation. On the one
hand, research and development activity can be directed at circumventing monopolies -
getting around a patent - or, on the other hand, they can be directed at strengthening
monopolies. Arguably, one of the concerns about Microsoft's new Vista operating system
is that it was designed to make interoperability more difficult in order to strengthen its
monopoly power. These research and development expenditures actually lower welfare,
in contrast with the social returns that arise from creating new products and lowering
costs, both of which enhance welfare. This illustrates the point that stronger intellectual
property rights may not lead to a faster pace of innovation.”
15
Microsoft example: Decided in court: Microsoft = monopoly
April 3, 2000 UNITED STATES OF AMERICA, Plaintiff, v. MICROSOFT

CORPORATION, Defendant. STATE OF NEW YORK, et al., Plaintiffs, v.
MICROSOFT CORPORATION, Defendant.MICROSOFT CORPORATION,
Counterclaim-Plaintiff, v. ELIOT SPITZER, attorney general of the State of New York, in
his official capacity, et al., Counterclaim-Defendants. Civil Action No. 98-1232 (TPJ),
Civil Action No. 98-1233 (TPJ) UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF COLUMBIA [Lexis Nexis]
“The court concluded that defendant violated the Sherman Antitrust Act by maintaining
its monopoly power by anticompetitive means, attempting to monopolize the Web
browser market, and tying its Web browser to its operating system. The court denied
defendant's request for a declaratory judgment against plaintiff states and dismissed
defendant's counterclaim.”
Microsoft example: Decided in court: Microsoft = monopoly

DISTRICT OF COLUMBIA [Lexis Nexis]
“Upon consideration of the Court's Findings of Fact ("Findings"), filed herein on

November 5, 1999, as amended on December 21, 1999, the proposed conclusions of law
submitted by the parties, the briefs of amici curiae, and the argument of counsel thereon,
the Court concludes that Microsoft maintained its monopoly power by anticompetitive
means and attempted to monopolize the Web browser market, both in violation of
§(Section) 2. Microsoft also violated §(Section) 1 of the Sherman Act by unlawfully
tying its Web browser to its operating system. The facts found do not support the
conclusion, however, that the effect of Microsoft's marketing arrangements with other
companies constituted unlawful exclusive dealing under criteria established by leading
decisions under § 1.”
Extent of Microsoft: Power to control prices

DISTRICT OF COLUMBIA Thomas Penfield Jackson, U.S. District Judge received his
16
A.B.(He studied the classics is what that means... i.e. Greek, Latin, and Classical
Civilization) in government from Dartmouth College in 1958 and an LL.B(Bachelor Of
Laws). from Harvard in 1964. He is a member of the American Bar Association, the
District of Columbia Bar Association (president, 1982-1983), and fellow of the American
College Trial Lawyers. [Lexis Nexis](CR)
“Monopoly power is the power to control prices or exclude competition.”
Example of monopoly: Automobile industry before Ford

(CR
“There is actually a long history of abusive uses of intellectual property rights. Going
back to the beginning of the last century, the automobile and the airplane were two of the
most important innovations, and the development and success of both were impeded by
IPR. In the case of the automobile, a patent was granted, n26 but it was an excessively
generic patent for a four-wheeled, self-propelled vehicle. The person who received the
patent had no intention of developing the automobile; instead, he used it to form a cartel.
n27 Often, the best, or at least the easiest, way of making money is not to come up with a
better idea but to form a monopoly or a cartel and restrict competition. For those seeking
easy profits, competitive marketplaces are very bad because they drive down prices and
erase [*1703] profits. IPR can be an important way of maintaining a cartel. n28 Most of
the automobile companies went along with the idea of the patent-driven cartel, except for
one. There was one innovator who had a different conception of what the automobile was
about, and that was Henry Ford. He had the idea of a people's car, at a low price; that idea
was totally inconsistent with the cartel's view of a high-priced, restricted-use vehicle.
Ford challenged the patent. n29 Had he not had the resources and the determination, he
would not have succeeded in this legal battle; however, he eventually did prevail. n30
Had he failed, the development of the automobile as we know it would have been delayed
for a long time. n31”
17
Example of monopoly: Human genome patent/Myriad

(CR)
“The human genome project is a case where there is a clear distinction between what
those who obtained patents received and their marginal social returns. There was a major
international effort to decode the human genome, and by the early 1990s it seemed clear
that it would be done within a few years. n42 There was a race, though, among the
private entrepreneurs to complete the project a little faster; they were willing to spend lots
of money to finish it a day faster, a month faster, maybe at most a year faster. Why? If
they could decode the genome and identify a gene, say the gene for breast cancer, a year
earlier, or even a day earlier, they would receive a patent. That would mean that anybody
who wanted to be tested to know whether they had a likelihood of getting breast cancer
would have to pay a huge amount of money, as they would have a monopoly [*1708] on
the use of this gene. The biopharmaceutical company Myriad received this patent n43 and
has been using, or I would say abusing, this patent. There are others who have been
willing to make the diagnostic tests free, but those with the patent say no, we own your
gene. You might think that you own it, but no, they own it. The market price for this test
is several thousand dollars. n44 Of course, if you do not have insurance, and nearly 47
million Americans do not have insurance, n45 it means that you may not be able to afford
to have this test; most of those who do not have insurance also have limited income, so
they cannot pay the several thousand dollars required and will not get the test. Many of
them may die as a result of not having the appropriate diagnostic test.”
18
Monopoly example: Turmeric

(CR)
“Biopiracy provides an important instance where it is evident that this is not the case. I
was first introduced to the concept of biopiracy when I was in a small indigenous village
in the high Andes of Ecuador. n48 In this particular village, the mayor went on at great
length about the problem of biopiracy (the patenting by American and other foreign
companies of indigenous medicines, plants, or a variety of indigenous ideas and
traditional knowledge) in Ecuador. In other words, biopiracy involves taking what was in
the public domain and privatizing it. Basmati rice is one example. Another example, in
some ways more dramatic, concerns the healing property of turmeric. Turmeric is a root,
used widely as a spice, but which has been known in India for its healing properties for
hundreds, probably thousands of years. Two South Asian doctors working in the United
States recognized that, under American law, they could get a patent; even though the
healing properties of turmeric were known in India, they may have guessed that the
patent examiner in Washington would probably not know about those properties. They
may have thought that, because the healing properties of turmeric were not "published,"
they had a good chance of getting a patent. But, of course, there is a difficulty of
publishing things that "everybody" knows - or at least everybody except the patent
examiner. This presents a classic Catch-22 situation. You cannot publish it because it is
widely known, but if it is not published, then it is (from the perspective of the patent
examiner) "not known." It is not prior art, and so you can get a patent. In the end, the
doctors received the patent, n49 with the result that if India had recognized and enforced
this patent, it would have meant that anyone in India who used turmeric for healing
purposes would have to send a check to these Indian doctors in the United States in
recognition of their patent. This was not a patent that was generating research, or an
advance of knowledge, in any way. It imposed a societal cost, without any corresponding
benefit.”
19
Monopoly example: Airplanes

(CR)
“As I mentioned earlier, one important innovation at the beginning of the last century was
the automobile; patents almost suppressed this important innovation. The other important
innovation was the airplane, and a patent thicket did impede the development of the
airplane. Everyone knows about the Wright brothers and their first manned flight at Kitty
Hawk, North Carolina, in 1903; their plane is even depicted on the license plates in that
state. The Wright brothers obtained some key patents, but so did another innovator,
named Glenn Curtiss. Thus, it was unclear whom you paid if you wanted to develop an
airplane. If you paid both of them what they demanded, it became too costly to develop
an airplane. If you paid only one of them, you risked a suit from the other. And so, the
airplane was not developed until World War I, when it was recognized that winning the
war was more important than IPR (or allowing patent lawyers to make money). The
United States [*1712] government effectively seized the patents and determined how
much was to be paid to whom. The development of the airplane proceeded very quickly
thereafter. n54”
20
AT: Flexibilities in AIDS meds:
A. There are inflexibilities in the flexibilities

(CR)
“One of the most vocal complaints against the TRIPS agreement that I mentioned earlier
was that it reduces access to generic [*1717] medicines. n65 The World Trade
Organization (WTO) has its own vocabulary, called "flexibilities," that allow countries to
issue compulsory licenses for generic medicines. n66 The head of the WTO has been
upset at my public criticisms of TRIPS, especially in those lectures in which I explain
how the WTO is causing people to die because without access to generic medicines, the
poor in developing countries suffering from life threatening diseases simply cannot afford
to pay the "brand name" prices. He wrote me to remind me that I was forgetting about the
flexibilities. But he is forgetting about the inflexibilities in these flexibilities. They are
designed to make it difficult to issue compulsory licenses even for life saving generic
medicines. If the WTO really were interested in making sure people had access to generic
medicines, the set of procedures would look very different. There might, for instance, be
a list of life saving drugs, or drugs that addressed debilitating disease, in which any
generic producer could sell in any country whose income was below a critical threshold.
Even better would be the reverse presumption: any generic producer could sell any drug
in any country whose income was below a critical threshold unless the owner of the
patent substantiated that it was a lifestyle drug, of little value in addressing either life-
threatening or debilitating diseases.”
B. US threatens action against countries that use flexibilities

(CR)
As it is, not only do the rules make it difficult for developing countries to get access to
these vital medicines at prices that they can afford, but the United States exacerbates the
problem by coming down hard on any country that attempts to use a compulsory license.
The United States threatens to take all kinds of other actions (and there are a variety of
actions that are costly to a developing country going against its wishes), even when the
country is complying with all the rules of TRIPS. So, it is not just how the rules were
designed but also the way they are being implemented that has made it more difficult to
get access to these generic medicines. n67
21
AT: “Innovation from TRIPS will solve”
A. Enforcing TRIPS will not solve AIDS meds

(CR)
“Reduced access to generic medicines is one of the most important and most visible
concerns of the developing countries, but there are a whole set of other concerns. One of
the complaints of the developing countries is that although they are being forced to pay
high prices for brand name drugs, the current system provides little incentive for research
and development on the diseases that afflict them. I mentioned that the drug companies
are spending more money on marketing and advertising than on research, and more
money for research on lifestyle drugs than on lifesaving drugs. n68 Almost all the money
that they spend on lifesaving drugs goes toward diseases prevalent in advanced industrial
countries, which is predictable. One of the problems of being poor is that you do not have
any money and therefore cannot spend a lot of money on drugs, even though if you do
not buy the drugs you may die. There is clearly a strong potential demand for these drugs
from poor countries, but the poor do not have the income to convert this potential demand
into a real demand. The drug companies, of course, realize this; some of them have been
very upfront about it. They admit that the patent system does not provide incentives for
developing cures or vaccines for the diseases that afflict the poor, especially the poor in
developing countries. The World Health Organization has finally also recognized that the
intellectual property regime is not addressing these concerns of the developing countries.
n69”
B. Drug companies don’t spend on research for diseases in developing countries

BMJ Medical journal December 23 2006 The BMJ is an international peer reviewed
medical journal Joseph E Stiglitz Nobel Prize in Economics in 2001 University
Professor, Columbia University; chair, Columbia University's Committee on Global
Thought; co-president, Initiative for Policy Dialogue; and chairman of the board, Brooks
World Poverty Institute, The University of Manchester. “Scrooge and intellectual
property rights” http://www.bmj.com/cgi/content/full/333/7582/1279 (CR)
“Developing countries paid a high price for this agreement. But what have they received
in return? Drug companies spend more on advertising and marketing than on research,
more on research on lifestyle drugs than on life saving drugs, and almost nothing on
diseases that affect developing countries only. This is not surprising. Poor people cannot
afford drugs, and drug companies make investments that yield the highest returns. The
chief executive of Novartis, a drug company with a history of social responsibility, said
"We have no model which would [meet] the need for new drugs in a sustainable way ...
You can't expect for-profit organizations to do this on a large scale."2”
22
2. AIDS drugs
Link: India produces AIDS meds
A. India is a major exporter of AIDs medication

AfricaFocus This website features high-quality analysis and progressive advocacy on
African issues, with particular attention to priority issues affecting the entire continent.
“India/Africa: Threat to Generic Drugs” Mar 7, 2005 [EG] <accessed 01/12/09>
http://www.africafocus.org/docs05/ind0503.php
“India is a major source of supply of the world's generic medicines; it exports
two-thirds of its products to developing countries. These exports are critical to the fight
against AIDS in sub-Saharan Africa, South America, and Southern and Southeast Asia.
Generic competition fueled by Indian production has been largely responsible for
reducing the prices of antiretrovirals by as much as 98%.”
Brink: TRIPS/IPR takes away vital AIDS drugs
A. IPRS take away access to lifesaving drugs for billions of people

(CR)
“1. Access to Medicine. One of the reasons that the costs are so high is that the patent
system impedes access to lifesaving drugs for billions. I opposed TRIPS (the so-called
Agreement on Trade-Related Aspects of Intellectual Property Rights, part of the Uruguay
WTO agreement signed in 1994) so strongly in part because of these effects. Indeed, I
believe one of the main reasons the pharmaceutical industry was pushing for TRIPS was
that they wanted to reduce access to generic medicines. These are so disliked by the drug
companies for the same reason that they are so liked by everybody else: the prices of
generic drugs are very low. The low price means that people who could not afford the
brand name drugs still can buy the generic drugs, and the competition with the generics
drives down the price of the brand name drugs. The loss of sales to generics as well as the
lower prices in turn lowers the profits of the large (brand name) pharmaceutical
companies; it is understandable why they have pushed so hard (and contributed so much
to campaigns) for IPR.”
23
B. Increased patent protection can reduce availability of medicines

Shayerah Ilias [Analyst in International Trade and Finance Foreign Affairs, Defense,
and Trade Division] Ian F. Fergusson [Specialist in International Trade and Finance
Foreign Affairs, Defense, and Trade Division] “Intellectual Property Rights and
International Trade” October 20, 2008 CONGRESSIONAL RESEARCH SERVICE
Order Code RL34292 [EG] <accessed 12/15/08>
“There is also concern that strengthened patent protection may drive up prices for
medicines or delay the entry of generic drugs into the market, reducing access to
HIV/AIDS treatments and other drugs.”
C. IPR increases prices on AIDs drugs which places them out of the reach of Africa
Michele Boldrin [Professor Boldrin is an economist with a broad range of interests. His
work includes research in business cycles and asset pricing; growth and demographic
change; innovation and intellectual property; and public policy and the welfare state.
Boldrin is a fellow of the Econometric Society. He is also a research associate of the
Center for Economic Policy Research in London and for FEDEA in Madrid.] David K.
Levine [David K. Levine is John H. Biggs Distinguished Professor of Economics at
Washington University in St. Louis. He is President of the Society for Economic
Dyamics, fellow of the Econometric Society, research associate of the NBER, member of
the Sloan Research Fellowship Program Committee, and co-editor of NAJ
Economics. His scientific research is supported by grants from the National Science
Foundation. He is the author with Michele Boldrin of Against Intellectual Monopoly,
with Drew Fudenberg of Learning in Games and the editor of several conference
volumes. He has published extensively in professional journals, including The American
Economic Review, Econometrica, The Review of Economic Studies, The Journal of
Political Economy, The Journal of Economic Theory, The Quarterly Journal of
Economics, and The American Political Science Review. He previously taught at UCLA
where he held the Armen Alchian Chair in Economic Theory and occasionally served as
Chair of the Department. He has served as co-editor of Econometrica, Economic Theory
and the Review of Economic Dynamics, as member of the American Economic
Association Honors and Awards Committee, and as panelist for the National Science
Foundation. He was program co-chair of the 2002 North American Summer Meetings of
the Econometric Society, has served on various committees of the both the Econometric
Society and American Economic Association, has been a research consultant for the
Federal Reserve Bank of Minneapolis, and was founding co-director of the CASSEL
experimental laboratory.] “Against Intellectual Monopoly” January 2, 2008 [EG]
<accessed 19/01/09> http://www.dklevine.com/papers/imbookfinalall.pdf
“AIDS drugs are relatively inexpensive to produce. They are so sufficiently
inexpensive to produce that the benefits to Africa in lives saved exceed the costs of
producing the drugs by orders of magnitude. But the large pharmaceutical companies
charge such a large premium over the cost of producing the drugs – to reap profits from
sales in Western countries where those drugs are affordable – that African nations and
individuals cannot afford them. They create artificial scarcity – excluding Africa from
AIDS drugs – in order to garner a higher price for their product in the U.S. and Europe.”
24
Impact: Death
A. A hike in prices will cause thousands of death

AfricaFocus This website features high-quality analysis and progressive advocacy on
African issues, with particular attention to priority issues affecting the entire continent.
“India/Africa: Threat to Generic Drugs” Mar 7, 2005 [EG] <accessed 01/12/09>
http://www.africafocus.org/docs05/ind0503.php
“Many patients need this second line of medications to survive. At least 20% of
patients need these drugs after three years of taking the initial course, and if they do not
get the medication they will die. The costly, brand-name versions are out of reach of most
people living with AIDS. Brand-name versions of these drugs can cost 26 times as much
as the generic versions that India could make under appropriate and flexible patent
standards. The global goal for the end of this year is to deliver AIDS medication to 3
million of the people that need them. 20% of these people can be expected to need these
second line drugs in three years time, and that adds up to 600,000 people! These 600,000
people could die without continued access to affordable medication.”
B. TRIPS increases drug costs

“In 1995 the Uruguay round trade negotiations concluded in the establishment of the
World Trade Organization, which imposed US style intellectual property rights around
the world. These rights were intended to reduce access to generic medicines and they
succeeded. As generic medicines cost a fraction of their brand name counterparts, billions
could no longer afford the drugs they needed. For example, a year's treatment with a
generic cocktail of AIDS drugs might cost $130 (£65; 170) compared with $10 000 for
the brand name version.1 Billions of people living on $2-3 a day cannot afford $10 000,
though they might be able to scrape together enough for the generic drugs. And matters
are getting worse. New drug regimens recommended by the World Health Organization
and second line defences that need to be used as resistance to standard treatments
develops can cost much more.”
25
C. Stronger IPR enforcement would negatively impact public health

Michael F. Martin (Coordinator) [Analyst in Asian Political Economy Foreign Affairs,
Defense, and Trade Division] K. Alan Kronstadt [Specialist in South Asian Affairs
Foreign Affairs, Defense, and Trade Division] “India-U.S. Economic and Trade
Relations” August 31, 2007 CONGRESSIONAL RESEARCH SERVICE Order Code
RL34161 [EG] <accessed 12/15/08>
“Opponents of inserting “data exclusivity”146 clauses into Indian law assert that
they constrict India’s generic drug industry’s ability to compete both domestically and
internationally, and place a large financial burden on firms that must repeat expensive
clinical trials. By removing the availability of inexpensive and oftentimes life-saving
medications, the argument goes, would have a seriously detrimental resulting impact on
public health.”
D. Patent right Drugs are out reach of most sick Africans

Michael Kremer is a senior fellow at the Brookings Institution, a professor of economics
at Harvard University, and a faculty fellow at the Center for International Development,
Harvard University. At the time this article was written, Rachel Glennerster was a
visiting scholar at the Center for International Development at Harvard University. She
is currently a staff member at the International Monetary Fund. The views expressed
here, as well as any errors, are the sole responsibility of the authors and do not
necessarily reflect the opinions of the Executive Directors of the IMF, or other members
of the IMF staff. {Regulation Volume 23, No. 2 August 28, 2000}
http://www.cato.org/pubs/regulation/regv23n2/kremer.pdf
“The monopoly pricing of patented goods prevents some people who need those
goods from buying them. This problem is illustrated vividly by the recent dispute
between the United States and South Africa over aids drugs. Up to 20 percent of pregnant
women in South Africa are infected with HIV. Aids drugs cost more than $10,000
annually, well beyond the reach of most South Africans. Alternative, generic versions of
the drugs would be much cheaper, but buying these products would violate the patent
rights of the original drug developers. ”
26
E. Under the status-quo current institutions Patents prevent people from obtaining
drugs they need to Survive
of the IMF staff. {Regulation Volume 23, No. 2 August 28, 2000}
http://www.cato.org/pubs/regulation/regv23n2/kremer.pdf
“To enable its citizens to obtain aids drugs more cheaply, South Africa is
considering legislation to compel patent holders to license their discoveries to generic
manufacturers and to allow the importing of cheap generic drugs from countries that do
not respect the original patents. Opponents of the legislation argue that if intellectual
property rights are not respected, private firms will lose their incentive to develop new
drugs. The United States initially opposed the legislation. However, when aids activists
began protesting against Al Gore, who had raised the issue as a chair of the U.S.-South
Africa Binational Commission, the United States rapidly backed down. The issues raised
by the confrontation are deep. Patents, and the resulting legal monopolies, create
incentives for research and development that drive medical progress. But under our
current institutions, those same patents can sometimes prevent people from obtaining
drugs that they need to survive.”
F. IPR signs death warrants for thousands

(CR)
“One example that shows the magnitude of what is at stake (and that has received a lot of
attention), are the AIDS drugs. One year's treatment of the brand name drugs, not the
most recent ones, but the older ones which are less expensive, costs $ 10,000. n21 In a
poor developing country, where the per capita income is $ 300, or even $ 3,000, a person
with AIDS is not going to be able to afford $ 10,000. They might be able to afford the
generic medicines, which sell for less than $ 200. When the trade ministers signed the
TRIPS agreement in Marrakesh in the spring of 1994, they were in effect signing the
death warrants on thousands of people in sub-Saharan Africa and elsewhere in the
developing countries. This is one of the reasons that TRIPS has generated such immense
concern. n22”
27
G. TRIPS stops people from buying lifesaving drugs
(CR)
“In the case of pharmaceuticals, the costs of our IP system go beyond money. The global
intellectual property regime denies access to affordable lifesaving drugs, even as the
AIDS epidemic lays waste to so much of the developing world. Despite the billions drug
companies earn in profits, they spend next to nothing looking for cures and vaccines for
the diseases of the poor. They spend far more on advertising than on research and far
more on researching lifestyle drugs than on lifesaving ones. The reason is obvious: the
poor cannot afford to pay much for drugs. For those concerned about health in
developing countries, the intellectual property regime has not worked.”
3. Innovation hurt
Link: AFF enforce IPR
Link: IPRS restrict knowledge and innovation

(CR)
“2. Why Patents May Impede Innovation: Raising the Cost of Knowledge. So far, I have
explained why it is that the returns to patents do not correspond to the social benefits. I
now want to go further and explain why it is that patents may actually slow innovation.
Knowledge is the most important input into the production of knowledge. Intellectual
property restricts this input; indeed, it works by limiting access to knowledge. One way
of thinking about this is in terms of any standard production process. If you increase the
price of an input, it reduces the supply of the output. n50 In this case, the input is
knowledge; patents increase the price of this input, which in turn reduces the output.”
28
Impact: Innovation is the key to the World Econ

(CR)
“Innovation is at the heart of the success of a modern economy. The question is how best
to promote it. The developed world has carefully crafted laws which give innovators an
exclusive right to their innovations and the profits that flow from them. But at what
price? There is a growing sentiment that something is wrong with the system governing
intellectual property (IP). The fear is that a focus on profits for rich corporations amounts
to a death sentence for the very poor in the developing world. So are there better ways of
promoting innovation?”
Link support:
A. IPRS slow innovation by taking away funding

(CR)
“The critique of the patent system is that, besides the large static and dynamic distortions
that I have described, there is a problem of distortionary finance. As I said before, under
the patent system research is financed out of monopoly profits. The difference between
the price and the marginal cost can be viewed as a tax. In other words, one can think of
the patent system as combining a competitive pricing system with a tax per unit output
(the difference between the price and the marginal cost of production), the revenues from
which are devoted to financing research. Part of the problem with the patent system,
however, is that much of that revenue does not go to finance research. The drug
companies spend more money on advertising and marketing than they do on research.
n57 Moreover, the directions in which they allocate their research budget do not accord
well with broader social objectives: they spend more money on lifestyle drugs, such as
for hair regrowth, than they do on lifesaving drugs. So, there is a lot of what you might
call "leakage" in this particular tax system: It is an inefficient tax in failing to deliver the
revenue into the important areas of research, where it should go.”
29
5. Affirmative Harms
1. AT: Courts inefficient
A. India can afford to fund judicial systems on its own
(CR)
“Moreover, the legal system can lead to unfair outcomes. The high costs of implementing
IPR, including the high costs of challenging patents, put developing countries at a
disadvantage, exacerbating the risks of biopiracy. The advocates of the patents often
argue that one should not worry about biopiracy, because the patents will not survive.
Even if that conclusion were true (which does not appear to be the case), it is very
expensive to challenge these patents. India is large enough and well enough off that it can
afford challenging them, but Ecuador does not have the necessary resources.”
B. New developments: India can handle IPR now!

United News of India, March 27, 2009 “Indian courts equipped to tackle international
cases of IPR” [Accessed via Lexis Nexis](CR)
“Indian Courts are well equipped to handle International cases relating to Intellectual
Property Rights (IPR) and Copyright, as a plethora of changes have been introduced in
the existing laws here as per the Berne Convention and TRIPS (Trade-Related Aspects of
Intellectual Property Rights) agreement, Justice Sanjay Kishan Kaul of the Delhi
High Court today said.”
30
C. Takes only three months for these cases to be tried

United News of India, March 27, 2009 “Indian courts equipped to tackle international
cases of IPR” [Accessed via Lexis Nexis] (CR)
“Speaking at a function organised by the Confederation of Indian Industry (CII) to mark

the World Intellectual Property Day, Justice Kaul said the Judiciary has always played a
proactive role in the protection of Intellectual Property Rights and has invented and
extended general principles to cover such cases. The Courts, he said, have extended its
concept of cause of action in IPR cases and have not gone by traditional concept of the
place of residence of the defendants. The courts have dealt cases even by deviating the
general principle laid down under Section 20 of CPC extended flexibility in jurisdiction,
Justice Kaul said. The concept of trans-border reputation was introduced for the first time
in the Apple Computer case where the court held that though the trade mark apple was
not in use in India, it had a reputation in India in relation to computers as information had
flown in through various sources, he said. Lauding the lawyers, Justice Kaul said that the
Delhi High Court has more than 75 per cent share of total IPR cases filed and the lawyers
have the knowledge of the latest amendments of the IPR laws. IPR cases are
expeditiously tried and disposed of by courts within three months, he added. India has
taken multifarious steps to strengthen the protection given to IP, Justice Kaul said, adding
there has been amendments in the legislative enactments to give effect to the
International Conventions and Treaties to which India is a signatory.”
31
6. Significance
1. IPR does not create innovation
A. Patents don’t protect most important discoveries
“The medical prize fund could be one of several ways to promote innovation in crucial
diseases. The most important ideas that emerge from basic science have never been
protected by patents and never should be. Most researchers are motivated by the desire to
enhance understanding and help humankind. Of course money is needed, and
governments must continue to provide money through research grants along with support
for government research laboratories and research universities. The patent system would
continue to play a part for applications for which no one offers a prize . The prize fund
should complement these other methods of funding; it at least holds the promise that in
the future more money will be spent on research than on advertising and marketing of
drugs, and that research concentrates on diseases that matter. Importantly, the medical
prize fund would ensure that we make the best possible use of whatever knowledge we
acquire, rather than hoarding it and limiting usage to those who can afford it, as Scrooge
might have done. It is a thought we should keep in mind this Christmas.3 4 5 6”
B. Other ways to gain innovation

Brooks World Poverty Institute, The University of Manchester ECONOMIC
FOUNDATIONS OF INTELLECTUAL PROPERTY RIGHTS.[Accessed via Lexis Nexis]
(CR)
“The intellectual property regime is part of society's innovation system, and its intent is to
provide incentives to innovate by allowing innovators to restrict the use of the knowledge
they produce by allowing the imposition of charges on the use of that knowledge, thereby
obtaining a return on their investment. But it is important when thinking about
intellectual property rights (IPR) - which include patents, copyrights, and various other
parts of the intellectual property system - to realize that there are many other parts of
society's innovation system. There are other ways of financing and producing research -
for instance, through universities and government-supported research labs. In fact, I
would argue, perhaps [*1697] immodestly, that the most important ideas are those that
are generated in universities, and many of the most important intellectual advances are
not covered at all by the patent system. Look at the basic idea underlying the computer,
Alan Turing's "Turing Machine": it was not protected by the patent system. n9 Ideas like
asymmetric information are not covered by intellectual property. n10”
32
C. Most innovation is not through IPR but through academia and government
(CR)
“Our innovation system rests on foundations of basic research, and most basic research
occurs within academia and government-sponsored research laboratories. Monetary
returns are only a small part of what motivates these researchers. Thus, the basic
framework of what induces people to engage in research is really not reflected in the
intellectual property regime. Obviously, research has to be financed. It takes resources, so
the question is not just how we motivate research but also how we finance it. As I shall
comment below, financing research through monopoly profits may be neither the most
efficient nor the most equitable way of doing so.”
33
D. IPR didn’t increase Microsoft innovation

“If we examine the efforts of Microsoft to prevent “piracy” of their software, we
find that they made little effort either legal or technical to protect their “intellectual
property” in their early creative days. It is now, in the 21st century, that they invest their
time and energy in the prevention of copying. However, if we compare releases of their
operating systems or word processors over the last five or even ten years, it would be
difficult to detect much “innovation.” What was Microsoft’s greatest innovation since
1994? No doubt, the web browser, the Internet Explorer. But who invented the web
browser? Not Microsoft, but a small group of creative competitors from whom, later on,
Microsoft took the idea and then acquired most of the basic code: The first popular
version of a browser, NCSA Mosaic, appeared in March 1993, while it was only in
August of 1995 that Microsoft released Internet Explorer 1.0.3”
34
E. The last 219 years have proved that IPR does not increase innovation
“What have the last 219 years taught us? Our final topic is an examination of the
evidence about intellectual monopoly and innovation. Is it a fact that intellectual
monopoly leads to more creativity and innovation? Our examination of the data shows no
evidence that it does. Nor are we the first economists to reach this conclusion. After
reviewing an earlier set of facts in 1958, the distinguished economist Fritz Machlup wrote
“it would be irresponsible, on the basis of our present knowledge of its economic
consequences, to recommend instituting [a patent system].”20
Since there is no evidence that intellectual monopoly achieves the desired purpose of
increasing innovation and creation, it has no benefits. So there is no need for society to
balance the benefits against the costs. This leads us to our final conclusion: intellectual
property is an unnecessary evil.”
35
F. An absence of patent protection could increase innovation in the software

industry by 15%
“Notice, in particular, that patenting is found to be a substitute for R&D, leading
to a reduction of innovation. In the authors’ calculation, innovative activity in the
software industry would have been about 15% higher in the absence of patent protection
for new software.”
36
7. Solvency
1. India reject
A. Current threat of sanctions is not enough to effect change
“The second area of intersection between human rights and intellectual property relates to
the TRIPS Agreement, adopted in 1994 as part of the World Trade Organization.28
TRIPS adopted relatively high minimum standards of protection for all WTO members,
including many developing and least developed states whose previous commitment to
patents, copyrights, and trademarks was nonexistent or at best equivocal.29 And unlike
earlier intellectual property agreements, TRIPS has teeth.30 Non-compliance with the
treaty can be challenged through the WTO’s hard-edged dispute settlement system, in
which rulings by WTO panels and Appellate Body are backed up by the threat of trade
sanctions.31”
B. U.S. already offer cooperation

The Press Trust of India May 1, 2009 Strengthen your IPR regime, US tells India
[Accessed via Lexis Nexis]
“Maintaining that India still remains "weak" in protection and enforcement of intellectual
property rights, the US today asked it to strengthen its IPR regime and said it was ready
to work with it in this endeavor. The US Trade Representative in his latest annual report
released here has placed India in a priority watch list for the year 2009, but noted that it
has made progress on improving its IPR infrastructure, including through the
modernisation of its IP offices and the introduction of an e-filing system for trademark
and patent applications. While appreciating some of the measures taken by New Delhi in
the last few years, the USTR said the United States remains concerned about "weak" IPR
protection and enforcement in India.”
37
2. Economy
A. Competition
- IPR supports uncompetitive policies

(CR)
“Furthermore, as with any property right, there are restrictions on the use of intellectual
property. The fact that you have a property right does not mean you can do anything that
you want with it. Owning a bat does not give you the right to hit someone over the head
with it. In the case of intellectual property, one of the restrictions is that you cannot
engage in abusive, anticompetitive behavior. n15 The rights of governments to issue
compulsory licenses form another important part of the patent regime. One of the
responses to the abusive, anticompetitive practices has been to restrict the use of patents,
effectively insisting on compulsory licensing, sometimes through forming patent pools.
In the consent decree in the case of the antitrust action against AT&T in the 1950s,
AT&T had to make its patents available to anybody that wanted to use them. n16 In my
Tunney filing n17 in the Microsoft case, I argued that one way of dealing with that
company's anticompetitive behavior was to limit its intellectual property rights. n18 Such
restrictions would, I suggested, enhance innovation in our economy.”
38
3. Sanctions fail
A. General
- External pressure fails to increase Indian IPR enforcement

India Brand Equity Foundation [IBEF (India Brand Equity Foundation) is a resource
center for global investors, international policy makers and world media seeking
updates, accurate and comprehensive information on Indian economy, State and sectors.
IBEF regularly tracks governmental announcements in policy, foreign investment,
macroeconomic indicators and business trends.] “Intellectual Property Rights: Patent
Protection and India’s Preparedness” December 2008 INDIA PAKISTAN TRADE UNIT
[The India Pakistan Trade Unit is a new initiative set up by Birmingham Chamber of
Commerce's International Trade Team. The two-way, international trade portal has been
designed to maximise trading opportunities between South Asian and West Midlands
companies. Whilst providing a leading regional resource on international trade and
investment with South Asia, the IPTU also promises to bring you up-to-date news and
weather reports as well as keeping you informed about events and initiatives. Their
website features useful information about the economies and business cultures within
India, Pakistan, Bangladesh and Sri Lanka.] [EG] <accessed 12/23/08>
http://www.iptu.co.uk/content/pdfs/INDIA%20RELATED%20ARTICLE/ibef_ipr.pdf
“Enforcement does not improve if the intellectual property rights issue is
perceived to be an issue that is thrust down India’s throat as a result of external pressure.
It improves when internal pressures for better compliance are generated and this has
begun to happen in the case of software and copyrights.”
B. GSP
- The economic costs of ending preferential treatment is small

Vivian C. Jones [Specialist in International Trade and Finance Foreign Affairs, Defense,
and Trade Division] “Generalized System of Preferences: Background and Renewal
Debate” September 25, 2008 CONGRESSIONAL RESEARCH SERVICE Order Code
RL33663 [EG] <accessed 12/15/08>
“Based on the statutory requirements which countries must meet — and continue
to practice — while participating in the program, the U.S. GSP program might be
characterized as a foreign policy tool as well as an international trade device. Although
GSP benefits are non-reciprocal, certain criteria speak to important U.S. commercial
interests, such as ensuring “equitable and reasonable” access in the beneficiaries’ market
to U.S. products, protecting intellectual property rights, and preventing the seizure of
property belonging to U.S. citizens or businesses. In addition, since certain “import
sensitive” products are excluded from eligibility and quantitative/value limitations apply
to any eligible imports, the economic costs of the preference are quite small.”
39
- GSP sanctions against India only hardened their opposition.
Book: “Globalising Intellectual Property Rights” Duncan Matthews [Member of Center
for Commercial Law Studies, Consultant for numerous IPR deals between countries,
receiver of Economic and Social Research Council research grants on the topic of IPR]
2002 http://books.google.com/books?id=5p-
vrs9wy0EC&pg=PA31&lpg=PA31&dq=GSP+threat+was+not+only+reason+India+a
ccepted+TRIPS&source=bl&ots=DmF-_wWXrH&sig=10VX7XnyVL-naaxZUGmr2l0-
or8#PPA32,M1 <Accessed 3/3/2009>
“in 1992, the US carried out its Special 301 threat and suspended GSP tariff exemptions
previously granted to Indian pharmaceutical products, estimates put the cost to Indian
exports to be in the region of $60 Million……
Initially, the use of Special 301 not only raised the intelectual level of awareness of the
need for protection of international property, but also provided a negative impact on
legislative change. In particular, India and Brazil hardened their position on reform of
domestic intellectual property law rather than be coerced by trade sanctions imposed by
the United States.”
-Argentina was willing to hold out against U.S. GSP sanctions

Carolyn Deere [Senior Researcher at the Global Economic Governance Programme at
the University of Oxford, Senior Research Associate at Oxford’s Centre for International
Studies, Founder and Chair of the Board of Directors of Intellectual Property Watch],
“The Implementation Game: The TRIPS Agreement and the Global Politics of
Intellectual Property Reform in Developing Countries,” 2009 (L.B.)
http://books.google.com/books?
id=ZI3jIYaTI0C&pg=PA165&lpg=PA165&dq=were+GSP+sanctions+against+Argenti
na+effective
%3F&source=bl&ots=mildb0Mfid&sig=CnaA4vCiYHT0VxakM9NR1Ykfqig&hl=en&sa
=X&oi=book_result&resnum=4&ct=result
“In the FTAA negotiations, where the United States proposed TRIPS-‘plus’ provisions,
Brazil successfully resisted what it considered an unreasonable deal. Second, even
though many countries were subject to coercive bilateral diplomacy, credible threats, or
actual trade sanctions, these pressures were only sometimes effective at bringing about
the desired reforms. In two of the three cases where the United States used trade
sanctions (in the form of the removal of GSP preferences), the targeted countries
subsequently made the specific changes (the Ukraine and Honduras) and GSP benefits
were reinstated. U.S. sanctions against Argentina did not yield, however, definitive
changes. Argentina’s offending IP provisions enjoyed strong support in its legislature
and from its generic pharmaceutical industry, which resulted in a willingness to ‘bear the
cost’ of the sanctions imposed.”
40
-Brazil is an example of a country that didn’t bend under threats of GSP sanctions
na+effective
“The Brazilian experience highlights that even the most strenuous U.S. threats did not
necessarily prove effective in particular circumstances. On 8 January 2001, twelve days
before President Clinton left office, USTR filed a complaint over the Brazil compulsory
licensing law with the WTO. USTR officials called this the ‘Merck’ case. At issue was
Article 68 of Brazil’s patent law, which allowed compulsory licenses to be issued in
situations where the patent holder does not locally manufacture the patented product
(known as a ‘local working’ provision). In June, in the face of enormous negative
publicity from NGOs, the Brazilian government, and the media, the Bush administration
withdrew the complaint. However, under the agreement between the two countries,
Brazil agreed that it would provide the United States with advance notice of a license
were issued under Article 68 of the Brazil Patent Act and that disputes would be
discussed through a bilateral ‘Consultative Mechanism’. In 2004, the United States
threatened to withdraw Brazil’s GSP benefits on the grounds of inadequate IP protection.
While Brazilian officials expressed deep resentment of these threats, the government
calculated that the cost to U.S. industries of sanctions against Brazilian exports would
dissuade their actual imposition. They noted that many U.S. producers and exporters
were too reliant on imports from Brazil to make this a cost-effective option for the United
States, and that many of the Brazilian exporters to the United States were in fact U.S.
subsidiaries. Compared to many developing countries, Brazil relied less on access to
U.S. markets as a proportion of its GDP. In addition, the government’s ability to push
through pro-IP reforms was constrained by opposition from domestic public health
advocates and generic drug industries. Further, resistance to U.S. pressures on IP issues
was a key component of Brazil’s foreign policy, particularly its goal of bolstering its
standing as a key international political and economic power.”
41
C. 301 process
-Precedent: Listing on 301 Watch List did not discourage investment in India.
International Journal of Law and Information Technology, Dr. ASsafa Endeshaw
(Reader in Information Law, School of Legal Sutdies, University of Wolverhamption,
UK), “Intellectual Property Enforcement in Asia: A Reality Check,”Vol. 13, No. 3, 2005
(DMN)
http://ijlit.oxfordjournals.org/cgi/content/full/13/3/378
“Apart from China, the 2003 USTR Report placed India, Indonesia, the Philippines and
Taiwan under its ‘Priority Watch List.’ Greed by foreign companies (whether or not
multinationals) has contributed to the lack of progress in IP enforcement. Hence,
although the state of IP in India has been presented as deficient in many respects, it does
not seem that the allegedly high levels of IP piracy, ‘poor enforcement’, ‘corruption, lack
of resources and training for law enforcement officials and an overburdened court
system’ have stopped any interest in the Indian market. Indeed, according to the same
report, ‘British, US and German firms have had the most success making revenue-
producing agreements with Indian companies. Many foreign companies involved in India
use a combination of exporting, licensing and direct investment.’
-Special 301 deals with intellectual property rights and includes a “watch list”
Jean Heilman Grier [Senior Procurement Negotiator, Office of the United States Trade
Representative, Executive Office of the President], “Section 301 of the 1974 Trade Act,”
U.S. Department of Commerce, March 2005 http://www.osec.doc.gov/ogc/occic/301.html
IV. "SPECIAL 301" (Section 1303 of Omnibus Trade and Competitiveness Act of
1988) A. Description. Section 301 is designed to enhance the United States' ability to
negotiate improvements in foreign intellectual property regimes. B. Annual Review. By
April 30 of each year, USTR must identify foreign countries that deny "adequate and
effective" protection of intellectual property rights (IPR) or "fair and equitable market
access" to U.S. persons relying upon IPR protection. 1. USTR must designate as
"priority foreign countries" those countries whose acts, policies or practices are "the most
onerous or egregious" and have the greatest adverse impact on relevant U.S. products,
and that have not entered into, or are not making significant progress in, negotiations to
provide adequate and effective IPR protection.. 2. Countries not designated as "priority
foreign countries" may be placed on "priority watch" or "watch" lists if their intellectual
property laws or enforcement practices are of major concern to the United States.
3. A country may be identified as denying adequate and effective IPR protection, even if
it is in compliance with the TRIPS Agreement. C. Investigations of Priority Countries.
USTR must normally self-initiate Section 301 investigations of the priority foreign
countries within 30 days of identification, unless USTR determines that initiation of an
investigation would be detrimental to U.S. economic interests.
42
-Background Information about Special 301 Process

na+effective
“Foremost among monitoring initiatives was the U.S. Special 301 process. In addition to
evaluating the performance of countries, the United States used the Special 301 process
to signal its preferences regarding the interpretation of international legal commitments.”
-Argentina and Brazil were not affected by Special 301 Scrutiny

na+effective
“A review of the evidence does nonetheless show that while a broad range of developing
countries were subject to similarly intense levels of Special 301 scrutiny (measured by
the frequency, consistency, and level of Special 301 listings), the standards of protection
across them varied widely. Appendix 7 details the 301 status of developing country
WTO members targeted from 1995 to 2007, clustering countries according to their
overall use of TRIPS flexibilities (using the categories set out in Table 3.11 in Chapter 3).
It shows that a range of countries made use of TRIPS flexibilities despite repeated
Special 301 listings by the United States. India, for example, was on the Priority Watch
List every year from 1995 to 2007. Argentina and Brazil were also consistently on the
Watch List but did not succumb to U.S. pressure in key areas.”
43
-Evidence Challenges the Assumption that Special 301 Process is Effective

na+effective
“Further, although the Special 301 process served to reinforce a pro-IP climate and to
communicate the preferences of the world’s most powerful trading nation, the evidence
presents an important challenge to assumptions about its effectiveness in changing
developing country behavior on the ground. Discerning the impact of U.S. Special 301
lists and threats on the specific decisions countries took is a complicated task. Many
listed countries listed were also signatories to TRIPS-plus FTAs with the United States,
generating a challenge of disentangling the effect of each. Moreover, in cases where the
purpose of Special 301 pressure was to promote more effective IP administration and
stronger enforcement, the absence of clear, quantifiable indicators makes it difficult to
accurately assess changes in performance over time.”
4. Corruption
A. Corruption hinders IPR enforcement
INTERNATIONAL INTELLECTUAL PROPERTY ALLIANCE [The International
Intellectual Property Alliance is a private sector coalition representing the U.S.
copyright-based industries in bilateral and multilateral efforts to improve international
protection of copyrighted materials. This year IIPA celebrates the 20th anniversary of its
founding. IIPA is composed of six trade associations (Association of American
Publishers, Business Software Alliance, Entertainment Software Association,
Independent Film & Television Alliance, Motion Picture Association of America and
Recording Industry Association of America), each representing a significant segment of
the U.S. copyright community. These member associations represent 1,300 U.S.
companies producing and distributing materials protected by copyright laws throughout
the world -- all types of computer software including business applications software and
entertainment software (such as videogame CDs and cartridges, personal computer CD-
ROMs and multimedia products); theatrical films, television programs, home videos and
digital representations of audiovisual works; music, records, CDs, and audiocassettes;
and textbooks, tradebooks, reference and professional publications and journals (in both
electronic and print media).] “2008 SPECIAL 301 REPORT INDIA” 2008 [EG]
<Accessed 01/05/09> http://www.iipa.com/rbc/2008/2008SPEC301INDIA.pdf
“The principle challenge posed by the Indian enforcement system is to make the
criminal system work despite corruption, inefficient court procedures, lack of training,
44
massively long delays, and few convictions (and even those are followed by low fines
and virtually no significant jail terms).”
B. Corruption plagues India’s courts

Vinita Bali - Legal Studies Research Papers Series “DATA PRIVACY, DATA PIRACY:
CAN INDIA PROVIDE ADEQUATE PROTECTION FOR ELECTRONICALLY
TRANSFERRED DATA?” October 2006 SANTA CLARA UNIVERSITY SCHOOL OF
LAW Working Paper No. 06-10, http://ssrn.com/abstract=932679
“The challenge posed by the Indian enforcement system is that the criminal
system is burdened by corruption, inefficient court procedures, lack of training, and
inordinate delays.”
C. Indian Judiciary is extremely corrupt

Neeta Lal [Neeta Lal is a widely published writer/commentator who contributes to many
reputed national and international print and Internet publications.] “Huge case backlog
clogs India's courts” June 28, 2008 The Asia Times [EG] <accessed February 9, 2009 >
http://www.atimes.com/atimes/South_Asia/JF28Df02.html
"An estimated [$600 billion] was the amount Indians shelled out as bribes to the
judiciary, higher than the bribes paid out in any other sector in the country," says "Global
Corruption Report 2007: Corruption in Judicial Systems". "The average amount of
money [roughly $90] paid in bribes by a household in India in the past 12 months was
maximum in the judiciary as compared to other sectors."
D. There are Millions of dollars being paid to Government officials for corruption.
The Times of India, Dhananjay Mahapatra “Rs 2,630-crore bribe paid yearly to lower
judiciary” May 25, 2007 http://timesofindia.indiatimes.com/India/Rs_2630-
crore_bribe_paid_yearly_to_lower_judiciary/articleshow/2072896.cms
“The Indian judiciary, the lower-tiers in particular, has been slammed by Transparency
International's Global Corruption Report (GSR)
2007, which alleges that a whopping Rs 2,630 crore ($580 Million) bribe is paid every
year to court officials. "Although provisions for the independence and accountability of
the judiciary exist in India's Constitution, corruption is increasingly apparent,"
E. Impeachment of corrupt judges is nearly impossible.

World Press, Colin Gonsalves, [public interest lawyer with the Human Rights Law
Network] “77 % believes that Indian Judiciary is corrupt: Global Corruption Report”
June 1, 2007 http://escapefromindia.wordpress.com/2007/06/01/77-believes-that-indian-
judiciary-is-corrupt-global-corruption-report/
“In India, impeachment is not feasible because it requires a huge (two-thirds) majority in
Parliament, India’s parliamentary elections have produced hung verdicts for years. And it
45
is virtually impossible to muster the numbers necessary for impeaching a judge. In 1993,
V. Ramaswamy, a Supreme Court judge, was found culpable by a court committee. But
he was politically well-connected and could not be impeached.”
F. When allegations are brought forward, they are dealt with by more corruption.
Asian Human Rights Commission, Bijo Francis [Human rights lawyer with the Asian
Legal Resource Center in Hong Kong, Holds advanced master's degree in human rights
law] “INDIA: Judge transfers may not stop corruption” January 19, 2009
http://www.ahrchk.net/ahrc-in-news/mainfile.php/2009ahrcinnews/2471/
“Allegations of corruption are not unheard off in the Indian judiciary. In fact, allegations
against judges, casting a shadow upon their impartiality, often hit the public domain. But
most of these allegations are played down as mere rumors. The mainstream media keep
away from publishing such news while those like Mid Day, a multiple-media
conglomerate, who dare, face the wrath of the judiciary in the form of contempt of court
proceedings.”
5. Indian research fail – no “life-saving technology”

A. Indian research is not effective
(CR)
“The other concern, which I mentioned earlier, is the gap in knowledge that separates the
developing and developed countries: TRIPS has made it more difficult to close that gap.
More broadly, even advocates of free trade, like Jagdish Bhagwati, argue that TRIPS
should never have been part of the WTO. n70 At the same time, as I have already made
clear, TRIPS provides little protection for the [*1719] intellectual property of
developing countries. It is not just an issue of biopiracy but also protection of
biodiversity. This is not, of course, just a matter of TRIPS, but also of the Biodiversity
Convention - the United States has refused to sign the convention that was intended to
provide some protection for their biodiversity largely because the drug companies do not
want to pay for the use of genetic materials obtained from developing countries.”
46
B. TRIPS decrease knowledge flow to india

(CR)
“The developing world has other complaints against the IP system imposed as part of an
international deal that has become known as the 1994 Uruguay Round trade agreement.
Developing countries are poorer not only because they have fewer resources, but because
there is a gap in knowledge. That is why access to knowledge is so important. But by
strengthening the developed world's stranglehold over intellectual property, the IP
provisions (called TRIPS) of the Uruguay agreement reduced access to knowledge for
developing countries. TRIPS imposed a system that was not optimally designed for an
advanced industrial country, but was even more poorly suited to a poor country. I was on
President Clinton's Council of Economic Advisers at the time the Uruguay Round was
completed. We and the Office of Science and Technology Policy opposed TRIPS. We
thought it was bad for American science, bad for world science, bad for the developing
countries.”
47
8. CP’s
1. Prize systems
Counterplan Text:
Agency: United Nations General Assembly
Enforcement: United Nations Member Countries
Mandates:
1: No IPR: IPR in the form of copyrights and trademarks will be abolished
2: Innovation Prizes: The copyright and patent system will be replaced with a system of
rewards provided by the Federal government of each sovereign individual country. The
monetary value of the rewards is not to fall below the initial cost of R&D.
Funding: Normal Means of the individual sovereign countries
Timeline: One month after a negative ballot
1. Reasonable Counterplan Criterion Met
I. Non-Topical
Because our plan has nothing to do with India and is thus non-topical, allows us to
continue to negate the resolution while providing an alternate plan.
II. Mutually Exclusive

Because our plan abolishes IPR and the affirmative plan is to protect IPR, they both
cannot be passed. You have a clear choice between negating the resolution. If you pass
our plan there is no IPR to protect. And if you vote Aff, you admit that IPR contributes
positively to society and thus discounts our plan as unneeded.
III. Provides a Comparative Advantage

As we will show you through out the round, the Aff plan cannot solve the supposed
harms they presented and thus have no advantages, but we will also show you that
numerous disadvantages will come about with an Aff ballot which will otherwise be
avoided by voting for the negative plan.
48
2. IPR is unneeded
A. Ideas can be protected without IPR

“In addition to the well-known forms of intellectual property – patents and
copyright – there are also lesser-known ways of protecting ideas. These include
contractual agreements, such as the shrink-wrap and click-through agreements that you
never read when you buy software. They also include the most traditional form of
protection – trade secrecy – as well as its contractual and legal manifestations such as
non-disclosure agreements. Like patents and copyright all of these devices serve to help
the originator of an idea maintain a monopoly over it.”
49
3. A Reward System Would Be a Net Benefit
A. Prize system
(CR)
“One alternative to the patent system is called the prize system. This entails giving a prize
to whoever comes up with an innovation, or at least those innovations that meet
announced objectives. For instance, the person who finds a cure or a vaccine for AIDS or
for malaria would get a big prize. If a person comes up with a drug with slightly different
side effects than existing drugs (but which is otherwise no more effective) he or she
might get a small prize. In other words, the size of the prize would be calibrated by the
magnitude of the contribution. This idea is actually an old one. The Royal Society of Arts
and Technology have been advocating and even using prizes to incentivize the
development of needed technologies for some two centuries. For instance, they thought it
was important to come up with an alternative to chimney sweeps; small, underfed boys
used to be sent down chimneys. It was not good for the health of these young boys and
not a socially desirable way of cleaning chimneys; but not cleaning chimneys meant
increasing the risk of fire, with serious consequences. Thus, the Royal Society offered a
prize to anybody who invented a mechanical way of cleaning chimneys. The prize
provided an incentive, and it worked. A patent system might also have motivated the
development of a mechanical device (though it did not), but if it had, there might have
been a problem. The owner of the patent might [*1720] have been tempted to attempt to
maximize the return to his innovation by charging a high fee for its use. That might mean
that only rich families could afford to use the mechanical device, and young boys' lives
would have continued to be put at risk.”
B. CP solves monopolies
(CR)
Moreover, the prize system has the advantage that there is less incentive to waste money
on advertising and to engage in other anticompetitive behaviors designed to enhance
monopoly profits. I mentioned that the drug companies spend more on advertising and
marketing than they do on research. These marketing expenditures are designed to reduce
the elasticity of demand, which allows the owner of the patent to raise prices and increase
monopoly profits. From a social point of view these expenditures are totally dissipative.
50
C. Possible alternative solutions
(CR)
Table 1. Comparing Alternative Systems
Innovation System
Attribute Patent Prize Government-
Funded Research
Selection Decentralized, Decentralized, self- Bureaucratic.
self-selection. selection. More
Lacks coordination. Lacks coordination. coordination
possible.
Finance (tax) Highly Can be less Most efficient.
distortionary and distortionary and more
inequitable. equitable.
Dissemination Limited - monopoly. Strong - competitive Strong.
Incentive markets.
Risk Litigation risk. Less risk. Least risk.
Innovation Strong but Strong, less distorted. Strong non-
Incentives distorted. Requires well-defined monetary
objectives. incentives.
Transaction High. Lower. Lower.
51
D. Prize system CP
“A medical prize fund provides an alternative. Such a fund would give large rewards for
cures or vaccines for diseases like malaria that affect millions, and smaller rewards for
drugs that are similar to existing ones, with perhaps slightly different side effects. The
intellectual property would be available to generic drug companies. The power of
competitive markets would ensure a wide distribution at the lowest possible price, unlike
the current system, which uses monopoly power, with its high prices and limited usage.”
E. Funding for prize system

“The prizes could be funded by governments in advanced industrial countries. For

diseases that affect the developed world, governments are already paying as part of the
health care they provide for their citizens. For diseases that affect developing countries,
the funding could be part of development assistance. Money spent in this way might do
as much to improve the wellbeing of people in the developing world—and even their
productivity—as any other that they are given.”
52
F. There other more beneficial ways of rewarding innovators

“...there are many other ways in which innovators are rewarded, even
substantially, and most of them are better for society than the monopoly power patents
and copyright currently bestow.”
G. A reward system would have a net benefit over IPR

Steven Shavell [Harvard Law School and National Bureau of Economic Research] and
Tanguy Van Ypersele [University of Namur and Catholic University of Louvain]
“Rewards Versus Intellectual Property Rights” 2001 THE JOURNAL OF LAW AND
ECONOMICS vol. XLIV [EG] <accessed 23/01/09>
“Under a reward system, innovators are paid for innovations directly by the
government (possibly on the basis of sales), and innovations pass immediately into the
public domain. Thus, reward systems engender incentives to innovate without creating
the monopoly power of intellectual property rights.”
53
H. Rewards are better than IPR

“Reward systems, or optional reward systems, and especially those based on
sales-related information, appear on reflection to hold promise as alternatives to our
system of intellectual property rights, because there is no necessity to marry the incentive
to innovate to conferral of monopoly power in innovations.”
I. A reward system would be far more beneficial than IPR (cheaper prices) [Link to
AIDs DA]
“To appreciate the possible advantages of reward systems, it is helpful to consider
areas of innovation where the social losses due to intellectual property rights are likely to
be high, namely, where the difference between price and production cost (after
innovation) is large. Such areas of innovation may be exemplified by development of
pharmaceuticals, computer software, and recorded music and visual products. Here,
prices are often substantial in relation to production cost; drugs may sell for many times
their marginal production cost, the price of computer software is generally nontrivial
even though its marginal production cost is essentially zero (it can be downloaded from
the Internet), and similar statements can be made about compact disc recordings, cable
television broadcasts, and first-run movies. In a regime with rewards, drugs would be far
cheaper and more widely used, all computer software would be free, and electronically
recorded materials would be inexpensive, arguably engendering significant increases in
consumer welfare.”
J. Reward system equals more innovation

“Moreover, there would also be potential gains from enhanced incentives to
innovate, as profits from patent and copyright may fall considerably short of consumer
surplus. For example, Kremer suggests that studies of the social versus the private returns
from research indicate that private profits from research might well be only one-third of
the social returns. Because optimal rewards would reflect the social returns, rewards
would increase overall incentives to invest.”
54
K. Historical precedent: Prizes work
of the IMF staff. {Regulation Volume 23, No. 2 August 28, 2000} THE CATO
INNSTITUTE [LC] http://www.cato.org/pubs/regulation/regv23n2/kremer.pdf
“Prizes also have been used to spur research and development. For example, in
1714, after a British fleet got lost and struck rocks off England’s coast, drowning 2,000
sailors, the British government established a £20,000 prize for a method of determining
longitude at sea. That prize led to the development of the chronometer.”
L. Patents create insufficient incentives for original research

“Patents nevertheless create insufficient incentives for original research because,
even with patents, inventors do not capture the full benefit of their inventions. First, as
discussed above, some potential purchasers of patented goods are not willing or able to
pay monopoly prices. Second, some of the benefit accrues to those consumers who would
be willing to pay even more than the monopoly price for patented goods. Third, some of
the benefit goes to those consumers who buy generic products after patents expire.
Finally, some of the benefits go to other researchers who draw on the research that led to
patented goods.”
55
M. Rewards encourage innovation

“Prizes are an attractive way of encouraging research, because unlike
government-funded programs, they provide strong incentives. Researchers get paid only
if their work succeeds.”
N. Historical Precedent: Rewards encourage innovation

“Through the early nineteenth century, prizes were used widely as an alternative
to patents and government subsidies. For example, when Napoleon needed better ways to
feed his troops, he established a prize that led to the development of food canning. Prizes
also have been used in recent times. In 1959, the British industrialist Henry Kremer
offered a prize of £50,000 for the first substantial flight of a human-powered airplane. In
1977, Paul MacCready’s Gossamer Condor made history by flying the one-mile long,
figure-8 route required to qualify for the prize. The next year, MacCready won a
subsequent £100,000 Kremer prize by flying the Gossamer Albatross across the English
Channel, entirely under human power. More recently, a group of electric utilities
established a $30 million competition for energy-efficient refrigerators, which was won
by Whirlpool with a line of refrigerators that operated 70 percent more efficiently than
federal requirements.”
56
9. Source indicts
1. All aff sources
Most advocates for AFF are special interest companies
(CR)
“This led me to a certain degree of skepticism about the standard perspectives on
intellectual property. When I was at the Council of Economic Advisors n4 we opposed
the Trade-Related Aspects of Intellectual Property Rights agreement (TRIPS), part of the
Uruguay Round of trade negotiations. Interestingly, so did the Office of Science and
Technology Policy. We were not alone in our opposition; indeed, it was a view held by
many, if not most, of the people who understood the issues. These views stood in contrast
to the views of most of the people who had some special interest on this issue,
particularly from the pharmaceutical and entertainment industries, who argued that the
stronger the intellectual property rights the better. When I went to the World Bank, n5 I
continued to be involved in the issue. We had concluded that what separates developed
and developing countries is not just the disparity, the gap, in resources, but also the
disparity in knowledge, and closing that gap in knowledge is an essential part of
successful development. We had become concerned that TRIPS might make access to
knowledge more difficult - and thus make closing the knowledge gap, and development
more generally, more difficult. We also worried about the effects of TRIPS on access to
life-saving medicines; TRIPS attempted (successfully) to restrict access to generic
medicines, putting these drugs out of the financial reach of most in the developing
countries. The World Bank has an annual report called the World Development Report,
which highlights a key development issue every year. During the first year I was at the
World Bank, we focused on the problems of knowledge for development. n6 That year's
report argued that TRIPS imposed an unbalanced intellectual property regime. n7”
57

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Rentschler/Rentschler Page 1 of 57

IPR Negative Arx Axiom/Vector

T.J. (Thomas Jefferson)

C. Human Rights is not a justification for IPR protection

For advocates of intellectual property protection, by contrast, the central focus of

E. UN: IPR rights conflict with Human Rights

G. Increased TRIPS and TRIPS plus violate human rights

H. There is conflict between IPR and HR

I. Human rights are non-transferable (IPR is)

J. The inclusion of intellectual property protection in human rights would

K. IPR is different from normal property rights

2. Alternate solution: Allow UN to protect IPR through HR context

Impact: Monopolies increase inefficiency and prices

Impact support: Monopolies increase prices lower output(decreasing jobs) and

AT: “Where are the monopolies?”

Monopoly example: Microsoft

Monopoly example: Microsoft decreasing innovation

Monopoly example: Microsoft: “new” innovations only based on strengthening their

Microsoft example: Decided in court: Microsoft = monopoly

April 3, 2000 UNITED STATES OF AMERICA, Plaintiff, v. MICROSOFT

Microsoft example: Decided in court: Microsoft = monopoly

“Upon consideration of the Court's Findings of Fact ("Findings"), filed herein on

Extent of Microsoft: Power to control prices

Example of monopoly: Automobile industry before Ford

Example of monopoly: Human genome patent/Myriad

Monopoly example: Turmeric

Monopoly example: Airplanes

AT: Flexibilities in AIDS meds:

A. There are inflexibilities in the flexibilities

B. US threatens action against countries that use flexibilities

A. Enforcing TRIPS will not solve AIDS meds

B. Drug companies don’t spend on research for diseases in developing countries

A. India is a major exporter of AIDs medication

Brink: TRIPS/IPR takes away vital AIDS drugs

A. IPRS take away access to lifesaving drugs for billions of people

B. Increased patent protection can reduce availability of medicines

A. A hike in prices will cause thousands of death

B. TRIPS increases drug costs

C. Stronger IPR enforcement would negatively impact public health

D. Patent right Drugs are out reach of most sick Africans

F. IPR signs death warrants for thousands

Link: IPRS restrict knowledge and innovation

Impact: Innovation is the key to the World Econ

A. IPRS slow innovation by taking away funding

B. New developments: India can handle IPR now!

C. Takes only three months for these cases to be tried

“Speaking at a function organised by the Confederation of Indian Industry (CII) to mark

B. Other ways to gain innovation

D. IPR didn’t increase Microsoft innovation

F. An absence of patent protection could increase innovation in the software

B. U.S. already offer cooperation

- IPR supports uncompetitive policies

- External pressure fails to increase Indian IPR enforcement

- The economic costs of ending preferential treatment is small

-Argentina was willing to hold out against U.S. GSP sanctions

-Background Information about Special 301 Process

-Argentina and Brazil were not affected by Special 301 Scrutiny

-Evidence Challenges the Assumption that Special 301 Process is Effective

B. Corruption plagues India’s courts

C. Indian Judiciary is extremely corrupt

E. Impeachment of corrupt judges is nearly impossible.

5. Indian research fail – no “life-saving technology”

B. TRIPS decrease knowledge flow to india

1. Reasonable Counterplan Criterion Met