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Cuban Rum Trademark Case Negative

All the plan does is stop companies in the United States from using trademarks claimed by Cuban companies Dinan '3 Donald R. Dinan, Adjunct Professor of Law, Georgetown University Law Center, specializing in
international trade law, intellectual property law, and litigation Journal January, 2003 26 Fordham Int'l L.J. 337 Fordham International Law
ARTICLE: AN ANALYSIS OF THE UNITED STATES-CUBA "HAVANA CLUB" RUM CASE BEFORE THE WORLD TRADE ORGANIZATION lexis Section 211 of the OAA deals with trademarks, trade names, and commercial names that are the same or substantially similar to trademarks, trade names and commercial names that are used in connection with businesses or assets that were confiscated by the Cuban government on or after July 1, 1959. It is intended to prevent the registration and enforcement in the United States of trademarks confiscated by Cuba. Section 211(a)(1) prevents the registration or renewal of a confiscated trademark by prohibiting a license authorizing the transfer of such trademarks, or the payment of fees to register or renew them, unless the original owner of the mark, or the bona fide successor-in-interest, expressly consents. n25 Section 211(a)(2) prohibits U.S. courts from enforcing these trademarks, n26 and Section 211(b) prohibits U.S. courts from enforcing [*344] any treaty rights, which require recognition and enforcement of these trademarks. n27 DEBATER NOTE: 1998 Omnibus Appropriations Act = "OAA"

Neolib K Link
IPR harmnzation reinforces neoliberal genetic and economic-reductionist discourse which results in commodification of genes – undermining solutions to poverty and famine and entrenching neoliberal dominance McAfee 8 (Kathleen McAfee, School of Forestry and Environmental Studies, Yale University,
Neoliberalism on the molecular scale. Economic and genetic reductionism in biotechnology battles The past five years have seen heated international disputes about the patenting of genes, crop varieties, and genetic engineering techniques, about trade in biotechnology products, and about control of the world s ‘‘genetic resources’’––the raw-material inputs for medical and agricultural biotechnology. These biotechnology battles are being played out in the World Trade Organization (WTO), the UN Food and Agricultural Organization, the Conventional on Biological Diversity (CBD), and other international arenas. The United States government, intent on reinforcing the dominant position of its own biotechnology-based industries, has fought hard for the acceptance of genetically engineered crops, for liberalization of biotechnology trade, and for the worldwide standardization of private intellectual property rights to biotechnology and its products. Private-sector positions and US policy in these global fora are framed by a neoliberal approach to biotechnology regulation. This approach, I contend, depends upon two forms of reductionist discursive practices: molecular-genetic reductionism and economic reductionism. Economic-reductionist arguments are mobilized in international debates to support the private ownership and market-based management of biotechnology and the interests of biotechnology firms. These arguments, in turn, make use of genetic-reductionist representations of ‘‘genes’’ and ‘‘genetic codes’’. However, such representations are supported neither by the theories and practices of contemporary molecular biology nor by the actual experiences of scientists and farmers who work with genetically modified organisms. The discourse of molecular-genetic reductionism postulates specific traits that are ‘‘caused’’ by one or more ‘‘genes’’, whether in humans or fish, bacteria or corn. It conceptualizes genes as discrete entities: functional units of information which can be characterized precisely, counted, added or subtracted, altered, switched on and off, or moved from one organism or one species to another by means of genetic engineering. The metaphor of the determinant ‘‘gene’’, although appealing in its simplicity, is seriously misleading. Nevertheless, the notion of ‘‘genes’’ as unitary objects with stable, predictable properties provides conceptual support for treating genetic constructs as tradable commodities which are subject to market exchange and to the assumptions of neoclassical economics. The dominant paradigm of environmental resource management attempts to incorporate nature within this neoclassical economic framework, emphasizing the role of markets in the valuation and allocation of natural resources, including genetic information (Costanzaetal., 1997; Dixon/World Bank, 1997). The values of nature are equated with the prices, in actual or hypothetical international markets, of natural resources such as timber and medicinal-plant samples and of ecosystem services such as tourism sites, CO 2 sequestration, and water filtration. This approach is reductionist in that it treats nature and its components as quantifiable and as separable, at least conceptually, from their contexts in living nature and society, while it obscures the effects of political, cultural, and ecological factors on market transactions and resource values. The two discourses of economic and molecular genetic reductionism are linked and mutually reinforcing in multilateral policy debates. Doubly reductionist representations

of genetics and biotechnology are mobilized by those stress biotechnology s scientific status and advocate minimal biotechnology regulation and globalized intellectual property rights (IPRs). Such representations are critiqued by those who stress the risks and limitations of technological solutions to problems of hunger and poverty and the need for policies that are specific to particular ecosystems, socioeconomic conditions, and local and national development strategies. Disputes over these issues have embroiled multilateral fora, especially the WTO and its Agreement on TradeRelatedIntellectualPropertyRights(TRIPS),the CBD and its newBiosafety Protocol, and the 2001 international Treaty on Plant Genetic Resources for Food and Agriculture. These disputes involve shifting alliances among the US and European and developing countries, tensions between social movements and states, and collisions between emerging institutions of environmental and economic governance. More than biotechnology per se is at stake: conflict over biotechnology has become a flashpoint of resistance to globalized governance under US hegemony.

Politics DA

Link - Bacardi lobbies against threats to Havana Club
Williams, ’10 (Ian, The Common Review, August 25, 2010,[sViewPointer]=5, accessed 7/26/13, JF) Bacardi blows hot and cold on its Cuban connections, but as one of the largest private, family-held companies in the world, it does not have to answer to shareholders for the millions it has expended on this grudge fight with the revolutionary regime they helped distill and market. Its lobbying power has bankrolled the maintenance of the embargo on Cuba, and in a fit of pure pique, Bacardi sought out the former owners of Havana Club and bought their tenuous claim to the trademark that the Cuban government had acquired by default. Litigated inside a United States hostile to Castro, their ownership of the trademark is not recognized in any other country and has on occasion threatened the whole global structure of international property rights. It has done little to stem the sales of Havana Club outside the United States, not least since one of the world’s liquor giants, Rémy Cointreau, markets it outside Cuba, which is what almost precipitated a trade war between the United States and the European Union over the case. Alcohol still fuels history!

Empirics prove plan is unpopular and requires intense lobbying
Donald R. Dinan 2002 [Adjunct Professor of Law, Georgetown University Law Center, specializing in international trade law, intellectual property law, and litigation. He advises both foreign and domestic clients in these areas, often combining all three disciplines to obtain resolutions of international trade problems. Professor Dinan practices¶ before the trade agencies of the United States government, including the International¶ Trade Commission, the Department of Commerce, and the United States Trade Representative Fordham International Law Journal, “An Analysis of the United States-Cuba¶ “Havana Club” Rum Case Before the World¶ Trade Organization”,, RH] The United States announced in April 2002 that, pursuant¶ to discussions with the EU, it would comply with the DSB's ruling and change Section 211 of the OAA to make it consistent¶ with the TRIPS Agreement. Article 21 of the DSU allows a Member a "reasonable period" of time to implement the recommendation of the DSB.'M This reasonable period should not exceed¶ fifteen months from the date of the adoption by the DSB of the¶ Appellate Body's report. The United States stated that it would¶ make the necessary legislative changes by December 31, 2002 or¶ when the current session of the U.S. Congress would adjourn,¶ but in no event later than January 3, 2003.17¶ ' As of the date that¶ this Article is being written, it does not appear that the U.S. Congress will meet this deadline if for no other reason than because¶ of the general gridlock in the Congress.17¶ While it would be a relatively easy technical matter to¶ amend Section 211 to make it compatible with the TRIPS Agreement, it is not entirely clear how this could be done in a manner¶ that would still give Bacardi rights to the mark and prevent¶ Pernod-Ricard from enforcing its marks in the United States¶ without adversely affecting other U.S. interests. The whole purpose of Section 211 was to discriminate against Pernod-Ricard in¶ favor of Bacardi. To remove the discrimination against Pernod-Ricard would mean that. marks are enforceable in the United States. To universalize the ban on enforcing trademarks confiscated by Cuba so that it applied equally to U.S. nationals as well¶ as non-U.S. nationals, would protect Bacardi's position but could¶ hurt other U.S. business interests, especially abroad.¶ Politics have again intervened. OFAC repealed the special¶ license to Pernod-Ricard and Congress passed Section 211 only¶ after heavy lobbying by Bacardi. The whole purpose of both actions was to prevent Pernod-Ricard, through HCH and

HCI,¶ from enforcing its mark in federal court. Without these actions,¶ Pernod-Ricard would have won.¶ Documents recently released through a Freedom of Information request showed the Florida Governor's office engaging¶ in an intensive lobbying campaign to influence the PTO on Bacardi's behalf after the WTO ruled in January 2002. These actions allegedly included efforts to have political appointees overrule career employees in their decisions on the case as they tried¶ to implement the WTO decision, and caused the removal from¶ the case of a PTO lawyer who had made a preliminary ruling in¶ PernodRicard's behalf. Bacardi has been a major contributor to¶ the Florida Republican party.176 These actions bring into question if the United States is actually going to change the law to¶ bring it into compliance with the DSB's ruling, or change it in a¶ manner that would satisfy the EU. If the EU deems the U.S.¶ changes insufficient, it can bring the United States back before¶ the WTO for a summary enforcement proceeding. 177

Link – Bacardi lobbies against anti-alcohol policies
Alcohol Justice,’10 (“Alcohol Industry Lobbying at the Federal Level in First Q 2010”, 2010,, accessed 7/26/13, JF) The deepest pockets? That would be the Distilled Spirits Council of the United States (DISCUS), which spent $1.18 million on behalf of members such as Bacardi USA and Brown-Forman; along with Diageo and Anheuser-Busch, each competing with $670,000 in lobbying dollars on such alcohol-related issues as alcohol taxes, drunk driving, and underage drinking. Rounding out the top six big spenders were Wine & Spirits Wholesalers, which tossed in $240K; Pernod Ricard, clocking in at $180K; and the Beer Institute, which managed $110K, a number that for this group actually sounds rather meager. Where did these millions go? Besides each of these firms using its lobbying dollars to influence Congress, they also either individually or collectively lobbied the Federal Trade Commission, the National Highway Traffic Safety Administration, the National Institute on Alcohol Abuse and Alcoholism, the Department of Health and Human Services, the Treasury Department, the Department of Commerce, the U.S. Trade Representative, the Food and Drug Administration, and other agencies. For what alcohol-related issues did these agencies lobby? Universally, the biggie was taxes, with all six agencies reporting lobbying dollars spent on excise and/or alcohol taxes. Other cross-over lobbying dollars were spent to influence alcohol issues such as underage drinking, drunk driving, food safety, transportation, and trade. These groups also reported spending on issues such as state beverage laws, health policies, renewable power, labor issues, bailouts, and health care reform.

A2: Bacardi =/= GOP
Bacardi lobbyists empirically earn Republican support in the Rum case
Isamil, Center for Public Integrity, ’05 (M. Asif, “Breaking the law: At least one in five companies lobbying fail to file required forms”, April 4, 2005,, accessed 7/26/13, JF) Take, for example, Jorge Rodriguez-Marquez, former president of Bacardi-Martini U.S.A., the domestic subsidiary of Bermuda-based liquor giant Bacardi Ltd. Between 1998 and 2002, Rodriguez-Marquez lobbied the U.S. government to intervene on behalf of his Miami company—now known as Bacardi U.S.A. Inc.—in its longstanding trademark dispute with a Cuban-French joint venture over rights to the popular rum label "Havana Club." Among those doing Bacardi's bidding was then-Sen. Connie Mack III, Republican of Florida, who, in 1998, quietly inserted into a huge government spending bill a measure designed to block U.S. courts from recognizing trademarks expropriated by Cuba (and who followed his Senate career by lobbying for Bacardi). This 11th-hour legislative ploy proved to be so controversial that it rankled both lawmakers and American corporations, which feared retaliation by the Cuban government. The European Union lodged a successful complaint against the United States with the World Trade Organization, and in 2004 the U.S. Patent and Trademark Office ruled against Bacardi. But if Rodriguez-Marquez's lobbying had repercussions on and beyond Capitol Hill, the American public was entirely unaware. That's because the Bacardi-Martini official didn't file a single form about his activities until 57 months—that's almost five years—after he started lobbying, despite the fact that the law requires disclosure forms to be filed with the Senate and House of Representatives every six months.

Bacardi controls legislation
USA Engage, ’06 (“Havana Club Patent Ruling Doesn’t go Down Smooth”, 14, August, 2006,, accessed 7/27/13, JF) In 1996, Bacardi filed a motion with the PTO to cancel Havana Club Holdings' U.S. trademark registration. The Washington Post and the Daily Business Review reported in 2002 that Gov. Bush conducted a months-long personal e-mail lobbying campaign directed at officials of the Treasury Department, which oversees the patent and trademark office. While Gov. Bush was lobbying, Bacardi was funneling tens of thousands of dollars to the Florida Republican Party and Bush's re-election campaign. As evidence of Bacardi's improper meddling in the patent office's deliberation, Orr pointed to several letters sent by Bacardi to OFAC and the PTO to try to influence the patent decision. Federal officials responded to the Bacardi letters by returning them to Bacardi and notifying them that the letters would not be considered.

Bacardi lobbying power controls bills in congress and Cuban-American votes
Briton, ’02 (Bob, “Bacardi: The Hidden War”, December 4, 2002,, accessed 7/27/13, JF) With Bacardi, it is a symbiotic relationship — the Government used the company to money-launder and direct funds to terrorists such as UNITA in Angola and the Contras, and Bacardi uses the US Government to enact legislation that permits economic terrorism. The US based transnationals are the driving force behind that Government's push to force open the trade barriers of developing nations while keeping US barriers in place. Bacardi takes that even one step further, having Bills pushed through Congress and signed by the President that not only violate those international trade agreements, but existing US laws. Bacardi's power lies in a combination of its economic size — 240 million bottles of alcohol sold

throughout 170 countries, and through its control over the Cuban-American community and the political clout that it exerts through their votes (look no further than the 2000 Presidential election).

Bacardi controls GOP on Havana Club dispute
Williams, ’05 (Ian, The Nation, November 25, 2005,, accessed 7/27/13, JF) When Pernod pushed the European Union into filing a dispute with the WTO, Bacardi complained, in a manner that almost defines the term "disingenuous" from a family that had just secured private legislation: "Pernod Ricard has pressured the EU into filing a claim with the WTO in an attempt to politicize a purely civil dispute. Bacardi views this as a private civil matter and one that is not connected in any way to world trade laws or the WTO." Others begged to differ, not least when Castro announced that Cuba could abrogate US trademarks, such as Coca-Cola, in retaliation. The WTO itself found in 2001 that the American law violated free-trade agreements, and the US trademark office has refused to revoke Pernod's registration despite even more litigation and lobbying by Bacardi, helped by alleged illegal campaign contributions to Congressman Tom DeLay, yet another politician who might be laid low by the demon rum. Perhaps the ultimate weapon was used when Castro threatened in 2001 to start producing a rum in Cuba called Bacardi. The US State Department, not good at seeing itself as others see it, promptly declared this to be a provocation. In the meantime, the European Union has effectively been bullied into taking no action to enforce the case it has won at the WTO. Castro himself has an occasional talent for expediency. One of the first winds of change that he got from the Soviet Union was when Mikhail Gorbachev cut back imports of Cuban rum as part of his anti-booze campaign. In 1999 the Cuban leader, who had already given up the trademark cigars that regularly put him on the cover of Cigar Aficionado magazine, went one step further; he urged Cubans to give up rum as well and warned that anyone who wanted rum over the New Year "will pay dearly for it." He asked an assembly of medical students, "How much damage has rum caused in any society?" He even lamented that there were "supporters of the revolution who like to toss down a few once in a while." Cynics assumed that the supplies for the growing export market for Cuban rum were threatened by domestic demand. While Fidelistas may berate Bacardi for its feud with Havana Club, rum aficionados almost universally deplore the company for the effect it has had on rum. Gresham's law observes that bad money drives out good; Bacardi has achieved this with rum. Its bland ubiquity has been driving the distinctive rums of the world from the mass consumer market. It is the equivalent of American cheddar driving out the 300 cheeses of France. Its monopoly power has been used to keep much better, genuinely local Caribbean brands from reaching takeoff. The islands cannot compete with subsidized and tariff protected high fructose corn syrup and Floridian sugar grown by former Cuban barons, so their one chance to market a valueadded branded commodity is frustrated by the transglobal black bat. Republicans used to inveigh against the Democrats as the party of "Rum, Romanism and Rebellion," but now Bacardi has the GOP in its pocket, it symbolizes the complete turnaround of political positions.

China DA

Couldn’t find anything – don’t think it links to China DA

Appeasement DA

1nc Link
The plan would be viewed as appeasement
Rubin, ’11 (Jennifer, The Washington Post, 10/18/2011,, accessed 7/26/13, JF) As bad as a prisoner exchange would have been, the administration actions didn’t stop there. The Associated Press reported, “The Gross-Gonzalez swap was raised by former New Mexico Gov. Bill Richardson, as well as by senior U.S. officials in a series of meetings with Cuban officials. Richardson traveled to Cuba last month seeking Gross’ release. He also told Cuban Foreign Minister Bruno Rodriguez that the U.S. would be willing to consider other areas of interest to Cuba. Among them was removing Cuba from the U.S. list of state sponsors of terrorism; reducing spending on Cuban democracy promotion programs like the one that led to the hiring of Gross; authorizing U.S. companies to help Cuba clean up oil spills from planned offshore drilling; improving postal exchanges; ending a program that makes it easier for Cuban medical personnel to move to the United States; and licensing the French company Pernod Ricard to sell Havana Club rum in the United States.” Former deputy national security adviser Elliott Abrams explained, “It is especially offensive that we were willing to negotiate over support for democracy in Cuba, for that would mean that the unjust imprisonment of Gross had given the Castro dictatorship a significant victory. The implications for those engaged in similar democracy promotion activities elsewhere are clear: local regimes would think that imprisoning an American might be a terrific way to get into a negotiation about ending such activities. Every American administration faces tough choices in these situations, but the Obama administration has made a great mistake here. Our support for democracy should not be a subject of negotiation with the Castro regime.” The administration’s conduct is all the more galling given the behavior of the Castro regime. Our willingness to relax sanctions was not greeted with goodwill gestures, let alone systemic reforms . To the contrary, this was the setting for Gross’s imprisonment. So naturally the administration orders up more of the same. Throughout his tenure, President Obama has failed to comprehend the cost-benefit analysis that despotic regimes undertake. He has offered armfuls of goodies and promised quietude on human rights; the despots’ behavior has worsened. There is simply no downside for rogue regimes to take their shots at the United States. Whether it is Cuba or Iran, the administration reverts to “engagement” mode when its engagement efforts are met with aggression and/or domestic oppression. Try to murder a diplomat on U.S. soil? We’ll sit down and chat. Grab an American contractor and try him in a kangaroo court? We’ll trade prisoners and talk about relaxing more sanctions. Invade Georgia, imprison political opponents and interfere with attempts to restart the peace process? We’ll put the screws on our democratic ally to get you into World Trade Organization. The response of these thuggish regimes is entirely predictable and, from their perspective, completely logical . What is inexplicable is the Obama administration’s willingness to throw gifts to tyrants in the expectation they will reciprocate in kind.

International Registry CP

Text: The WTO should amend TRIPS to establish an International Trademark Registry for Well-Known Foreign Marks, that commission should then rule the Havana Club trademark well-known.

1NC Solvency of Case
Registry solves Havana Club in all WTO member states
Pava 2011 (Mindy – Executive Symposium Editor for the Emory International Law Review, J.D. Candidate at Emory University School of Law, The Cuban Conundrum: Proposing an International Trademark Registry for Well-Known Foreign Marks, Emory International Law Review, p. Lexis-Nexis) Using Havana Club rum as an example, the commission could rule that the Cuban government’s joint venture with Pernod Ricard that expanded Havana Club’s sales and marketing to numerous countries caused the rum’s mark to achieve a high degree of knowledge or recognition. The relevant test would be to determine if worldwide consumers associated the mark with the specific rum exported from Cuba. The commissioners then would decide if another company aiming to use Havana Club as its trademark would dilute the character of the well-known mark because consumers would automatically associate the rum with its Cuban origins. If the commissioners opted to use the European Community Trademark System as a model, Havana Club rum would garner well-known status in all member states because Cuba is a signatory of TRIPS, and a well-known mark that exists in one member state would attain the same protections from all member states, even if the mark had yet to be used in commerce within every state’s borders.

2nc Solvency Case
The International Marks Registry would solve on an international level
Pava 2011 (Mindy – Executive Symposium Editor for the Emory International Law Review, J.D. Candidate at Emory University School of Law, The Cuban Conundrum: Proposing an International Trademark Registry for Well-Known Foreign Marks, Emory International Law Review, p. Lexis-Nexis) Although a repeal of Section 211 would repair the United States’s international standing regarding its protection of well-known Cuban marks, it seems obvious that a similar dispute could arise between other nations with a deteriorating political relationship. To ensure that countries do not allow temporary political expediency to infringe on each other’s customary trademark rights , this Comment proposes the creation of an international registry for well-known marks as an amendment to TRIPS. This amendment for a well-known mark registry, if ratified by TRIPS’s signatory states, would serve as a more widespread solution in preventing countries from using political reasons as justification for interfering with intellectual property rights.

CP solves well-known marks on a global scale
Pava 2011 (Mindy – Executive Symposium Editor for the Emory International Law Review, J.D. Candidate at Emory University School of Law, The Cuban Conundrum: Proposing an International Trademark Registry for Well-Known Foreign Marks, Emory International Law Review, p. Lexis-Nexis) The WIPO Joint Recommendation Concerning Provisions on the Protection of Well-Known Marks establishes a workable framework for determining which marks have achieved a sufficient level of fame to be characterized as “well-known.” 293 Under this framework, an independent commission would first determine if the mark had established a degree of knowledge or recognition in the relevant sector of the public. 294 The well-known marks commission would be comprised of representatives from each state that had approved the amendment to TRIPS, and each state’s representative would serve on a rotating term so that the total number of commissioners would not be overly cumbersome at any given time. 295 In analyzing whether a mark conflicts with a separate, existing mark, the commission would use Article 4(1)(b) of the Joint Recommendation in its examination of whether the mark constitutes a reproduction or imitation of the well-known mark, and whether using the mark would likely unfairly impair or dilute the distinctive character of the well-known mark. 296 Similarly to the EU’s trademark framework, once a mark were registered in one member state and achieved well-known status there, it would automatically achieve wellknown status in every country that had ratified the amended TRIPS agreement. 297

A2: Can’t define
CP defines a well-known mark
Pava 2011 (Mindy – Executive Symposium Editor for the Emory International Law Review, J.D. Candidate at Emory University School of Law, The Cuban Conundrum: Proposing an International Trademark Registry for Well-Known Foreign Marks, Emory International Law Review, p. Lexis-Nexis) First, to be considered for status as an internationally registered wellknown mark, a mark would have to meet a standardized definition of “wellknown” that would exist among all nations that have ratified the amendment. Both the WIPO Joint Recommendation Concerning Provisions on the Protection of Well-Known Marks, and the European Union’s Community Trademark framework, provide guidance on how such a system should be developed.

A2: US say no
US says yes
Pava 2011 (Mindy – Executive Symposium Editor for the Emory International Law Review, J.D. Candidate at Emory University School of Law, The Cuban Conundrum: Proposing an International Trademark Registry for Well-Known Foreign Marks, Emory International Law Review, p. Lexis-Nexis) While the suggestion of an international registry for well-known marks as an amendment to TRIPS seems easy, the real question remains whether countries have an incentive to sign on to the amended agreement and sacrifice some of their intellectual-property autonomy. The United States, as the country that stands to lose the most if international intellectual property standards are violated, would need to be persuaded that such an amendment would primarily serve to protect its thousands of wellknown marks, such as those of Nike, Starbucks, McDonalds, and others, and that such protection is worth a loss of sovereignty. Perhaps a reminder of the problems that the United States encountered in South Africa would persuade lawmakers of the benefits of signing on to such an amendment. During the U.S. embargo with South Africa as a protest of the county’s apartheid regime, U.S. companies were prevented from filing trademark applications in South Africa. 303 When the embargo ended, scores of U.S. companies discovered that their well-known marks had been appropriated by South African companies who registered the marks as a means of profiting from the U.S. businesses’ reputations. 304 The expense that it took for the U.S. companies to recover their marks in South Africa could have been avoided if an international registry for well-known marks existed that superseded temporary political considerations, embargoes, or other forms of disputes between countries.

A2: Registry doesn’t resolve dispute
CP would find the U.S. to be in violation
Pava 2011 (Mindy – Executive Symposium Editor for the Emory International Law Review, J.D. Candidate at Emory University School of Law, The Cuban Conundrum: Proposing an International Trademark Registry for Well-Known Foreign Marks, Emory International Law Review, p. Lexis-Nexis) The amendment calling for the creation of the international registry for well-known marks would help emphasize the “unclean hands” doctrine in international trademark jurisprudence. The U.S. Supreme Court has defined unclean hands as “any willful act concerning the cause of action which rightfully can be said to transgress equitable standards of conduct.” 305 In applying for trademarks for Bacardi’s version of Havana Club rum and General Cigar’s Cohiba cigars with the knowledge that Cuban products bearing the marks would have been able to enter into the U.S. market if not for the embargo, both Bacardi and General Cigar can be said to have acted with unclean hands. An international registry for well-known marks would forbid these companies from using an embargo or other temporary domestic law or resolution as a means of circumventing traditional intellectual property principles and agreements.

CP Solves best
CP is a necessity to solve in the future
Pava 2011 (Mindy – Executive Symposium Editor for the Emory International Law Review, J.D. Candidate at Emory University School of Law, The Cuban Conundrum: Proposing an International Trademark Registry for Well-Known Foreign Marks, Emory International Law Review, p. Lexis-Nexis) Still, lawmakers face a difficult balancing act, and the influx of lobbyists and special interest groups can easily sway views. 317 Because no simple solution exists in the conundrum of whether to recognize well-known trademarks emanating from a rogue state, this Comment pushes for the creation of a permanent, higher power that would take the decision out of the hands of individual nations and instead rely on a separate international framework existing in times of war and in times of peace. The nations that adopted the TRIPS Agreement have recognized the need for common international trade rules for intellectual property rights. An amendment creating an international registry for th e controversial trademark area of wellknown marks would further the overall mission of TRIPS by targeting—and restricting—the enhanced potential for consumer confusion that now exists in a marketplace that has expanded to a worldwide reach.

CP means a problem free embargo
Pava 2011 (Mindy – Executive Symposium Editor for the Emory International Law Review, J.D. Candidate at Emory University School of Law, The Cuban Conundrum: Proposing an International Trademark Registry for Well-Known Foreign Marks, Emory International Law Review, p. Lexis-Nexis) With a binding international registry for well-known marks and a U.S. court system that relied on equitable principles of international intellectual property rights, including the consideration of unclean hands and bad faith, a future embargo that mirrors the current U.S.-Cuba trade restrictions would not lead to a similar impact on trademark rights between the two nations at the center of the conflict.

CP solves best
Pava 2011 (Mindy – Executive Symposium Editor for the Emory International Law Review, J.D. Candidate at Emory University School of Law, The Cuban Conundrum: Proposing an International Trademark Registry for Well-Known Foreign Marks, Emory International Law Review, p. Lexis-Nexis) Despite the advantages inherent in the European Community’s different structure and in its profound emphasis on the free movement of goods, a crossborder registry for well-known marks could succeed on a wider scale. Similarly to the European Community Treaty, the TRIPS Agreement itself is primarily concerned with enhancing trade among member states. 301 In its preamble, TRIPS expresses the goal of me mber states to “r educe distortions and impediments to international trade . . . and to ensure that measures and procedures to enforce intellectual property rights do not themselves become barriers to legitimate trade.” 302 Therefore, while all of the signatory states of TRIPS may not function as one cohesive “community,” as is the case in the EU, all of the signatory states have expressed a desire to tear down trade barriers. Accordingly, the proposed TRIPS amendment that this Comment advocates seemingly would provide fo r a more seamless and efficient registration system for marks that have achieved such renown that they are well known across borders.

CP solves best
Pava 2011 (Mindy – Executive Symposium Editor for the Emory International Law Review, J.D. Candidate at Emory University School of Law, The Cuban Conundrum: Proposing an International Trademark Registry for Well-Known Foreign Marks, Emory International Law Review, p. Lexis-Nexis) Overall, because the public seeks Havana Club rum and Cohiba cigars primarily based on the Cuban origin of the products, it its likely that these marks would be construed as well known under an international registry and substantial weight would be given to the marks’ association with Cuba. In addition, the international registry amendment to TRIPS for well-known marks would mitigate consumer confusion in the worldwide marketplace, as only one company would be authorized as the well-known mark holder. A consumer looking to purchase Cohiba cigars in a country that trades with both the United States and Cuba would no longer be flummoxed by encountering both Cubatabaco’s and General Cigar’s mark.

WTO Credibility

1. Alt Cause: Antigua and Barbuda gambling dispute
New, Intellectual Property Watch, ’13 (William, “United States chided as TRIPS scofflaw AT WTO”, 26 March 2010,, accessed 7/24/13, JF) Meanwhile, in the high-profile online gambling case where Antigua and Barbuda have been given the green light to retaliate under the TRIPS Agreement by not protecting US IPRs, the tiny nation today again appealed the United States to show progress toward complying with the WTO ruling . “The delegation of Antigua and Barbuda has so far not seen substantial progress on compliance by the United States with the DSB’s decision,” the country said in a shortened version of its statement. “Nor have they seen substantial progress by the United States in achieving a settlement with Antigua and Barbuda.” The country said it is “disappointed” by the lack of progress as the “negative consequences of this protracted impasse are very real for Antigua and Barbuda.” It said the case is a test for member states “seeking to determine whether the *WTO Dispute Settlement Understanding+ can deliver practical and timely benefits for small and vulnerable countries.” It demanded a reason why after 5 years the US still cannot honour the DSB decision nor reach an agreed settlement. In January, the DSB authorised Antigua and Barbuda to use cross-retaliation under TRIPS to recover its damages. “But before it sets its foot to that path, Antigua and Barbuda appeals to the United States to make one last effort at bringing its complex bureaucratic structure to a decision that will avoid unpredictable consequences,” it said. “The delegation of Antigua and Barbuda also appeals to the DSB to realize that justice delayed is justice denied, and urges closer attention to the systemic issues that surround this case that threaten the health of the system the WTO has for the resolution of trade disputes.”

2. No internal link – trade talks don’t collapse
Blustein, Washington Post Writer, ’08 (Paul, “Don’t Trade Recession for Depression”, December 07, 2008,, accessed 7/24/13, JF) The complete termination of global trade talks is unthinkable. Nothing of the sort has happened since the '30s. Previous trade rounds had very dark moments, too: The Uruguay Round, which was finalized in 1994, took eight years. One way or another, the Doha Round will get done eventually. Those sentiments are articles of faith among many trade experts. Experience has taught them that, in the end, the self-interest of the community of nations in preserving the multilateral trading system always prevails. They are probably right. But the risk that they might be proven wrong this time looks uncomfortably high.

3. Section 211 Repeal doesn’t solve dispute
U.S. Chamber of Commerce, ’10 (" Domestic and International Trademark Implications of HAVANA CLUB and Section 211 of the Omnibus Appropriations Act of 1999 ”, March 3, 2010,, accessed 7/24/13, JF) Finally, it is important to note that by calling for full repeal of Section 211, the Global IP Center is in no way taking a position on the case between the two private parties engaged in the “Havana Club” trademark dispute, nor are we questioning the United States foreign policy with regard to Cuba, and we certainly are not condoning the actions taken by Fidel Castro in the 1960s to confiscate Americans’

property. Just the opposite. Rather, we are recommending that the United States abide by its international obligations, that we follow the rule of law, and that we continue to defend the rights, principles, and institution s that generations of Americans worked so hard to build . Repealing Section 211 and allowing U.S. courts to decide the merits of the “Havana Club” case free of outside intervention will do this.

4. Alt Cause: Cohiba cigar case
Pava 2011 (Mindy – Executive Symposium Editor for the Emory International Law Review, J.D. Candidate at Emory University School of Law, The Cuban Conundrum: Proposing an International Trademark Registry for Well-Known Foreign Marks, Emory International Law Review, p. Lexis-Nexis) Even if Cuba ends its repressive human rights policies, other disputes between the United States and Cuba must be resolved before any easing of the embargo is considered. In particular, ongoing trademark issues would need to be addressed before the two nations could work toward normalizing relations. 146 During the embargo, several U.S. companies have used brand names that originated in Cuba, as increasingly strict federal laws have barred companies affiliated with the Cuban government from registering their products in the United States. 147 Without the embargo in place to block the Cuban entities’ claims to disputed trademarks, the clash over the rightful ownership of these trademarks could stretch from the U.S. courts to Congress to the boardrooms of some of the largest U.S. corporations. 148 In particular, disputes involving Havana Club rum and Cohiba cigars have spanned approximately a decade each in litigation. 149 Both the Havana Club rum and Cohiba cigar cases illustrate the trademark friction that exists between the United States and Cuba as a result of the trade embargo.

5. Non-Unique – Regional trade blocs now
Trade Policy Monitor, ’05 (“WTO credibility questioned in Asia”, April 10, 2005,, accessed 7/25/13, JF) The March 15 early morning broadcast from Radio Australia reported that the Philippines is reviewing its membership in the World Trade Organisation because of tariff disputes over its top exports. Philippine Trade Secretary Manual Roxas was reported to have said that the country might withdraw from its membership in the World Trade Organisation over what he claims is the trade body's discrimination between rich and poor members. Citing the United States decision to impose tariffs of up to 30% on imported steel, and the European Union's preference for tuna from Africa and the Caribbean rather than the Philippines, the Trade Secretary considered the WTO ineffectual. Elsewhere in Asia, the perception is shared that multilateral global free trade is beginning to be replaced by regional trading blocs that favour their own members over the rest of the world. If the EU and NAFTA can present difficult entry barriers for non-members, then perhaps this western approach to free trade can confer some of the same benefits across the Pacific. Although it is a key economic region, Northeast Asia still lacks any sort of inclusive economic cooperation framework. Korea and China both lack free trade agreements of any kind with other nations. In the years to come, commercial competition and economic conflict among Korea, China and Japan will likely increase. Consequently, business interests in Korea, China, and Japan are beginning to suggest that their governments should work on some form of a Northeast Asian Free Trade Area. An NEAFTA, based on standard free trade criteria, may find its strategic rationale by emphasising commercial advantages of interest to the business community, such as developing a Northeast Asian steel community, or undertaking joint development of the Yellow Sea.

6. SQUO Solves and No Internal Link – Trade Blocs inevitably form a multilateral system
Frankel, ’97 (Jeffrey, “Regional Trading Blocs: In The World Economic System”, 1997,, accessed 7/27/13, JF – it’s a web upload of a book) When a bloc forms, nonmember countries might respond by seeking to join it rather than by forming blocs of their own. This was certainly the hope when Kemp and Wan proved their theorem of a hypothetical sequence of ever-expanding FTAs that could improve the welfare of all countries at every stage. Several authors (each with somewhat different specifications of the model) have shown that nonmember countries one by one will find it in their interest to join a given FTA, even without the sort of (often impractical) redistributive side payments that Kemp and Wan had in mind (Bond and Syropoulos 1995; Deardorff and Stern 1992; Saxonhouse 1993; Stein 1994; Yi 1994). The incentive to join lies chiefly in the fact that the bloc turns the terms of trade in favor of the members and against the nonmembers. Baldwin (1996) models the political economy process. When the number of members in a bloc rises, firms in nonmember countries lose demand and so lobby their representatives to join the bloc. Each new member in turn heightens the incentive for the remaining nonmember countries to join. While the bloc expands, its members gain progressively as the terms of trade are shifted further and further in their favor. Those that continue to be left out lose progressively.

7. No Uniqueness – Doha Round collapse kills WTO Cred
Blustein, Foreign Policy, 10 (Paul, “RIP WTO: Why 2010 could mark the death of the global trade system as we know it”, January/February 2010,, accessed 7/25/13, JF) Someday historians may look back on 2010 as the year the global trade system died -- or contracted a terminal illness. A pledge by world leaders to complete the Doha round of global trade negotiations this year looks increasingly likely to end in yet another flop, and that would deal a crushing blow to the trade system as we know it. Of course, commerce will continue across national borders, and one-off deals between countries will still happen. But the slow-but-steady, across-the-board opening of markets that has fueled growth for decades is grinding to a halt. After eight painful years of standstill and failure, with each meeting just a shoveling of intractable problems forward to the next, the Doha talks might collapse once and for all in 2010, possibly taking the World Trade Organization (WTO) down in the process. Yes, negotiators could once again defer the day of reckoning by setting a new deadline and resolving to try again later -- just as they've already done in Cancún, Geneva (three times), Hong Kong, and Potsdam. But they're running out of chances. No less an authority than Stuart Harbinson, the former WTO General Council chairman who played a key role in the round's launch in 2001, wrote recently: "This time ... the crisis is real. Too many deadlines have come and gone and the WTO simply cannot afford a repeat. The fundamental credibility of the institution is now at stake ... 2010 is a real deadline."

8. No Solvency - DSB ineffective: 3 reasons
Duncan, ’02 (Christopher, “Out of Conformity: China’s Capacity to Implement World Trade Organization Dispute Settlement Body Decisions After Accession”, 2002 Vol. 18 Is. 2, xt%253Dauilr%26sa%3DX%26scisig%3DAAGBfm3ggIrnXFQep8HqLAJ4CGg4HHQTLQ%26oi%3Dscholarr#s 1191%26context%3Dauilr%22, accessed 7/25/13, JF) Although Members have generally accepted the DSU's rules on compliance as a major improvement over the GATT mechanism, there are three procedural areas of the rules that still raise concerns and may have important implications for China's compliance with DSB decisions. 2 ° 4 One area of concern relates to whether the guidelines clearly establish a compliance deadline by setting standards for a "reasonable period of time" in which to implement a DSB decision. 0 5 Another area of concern relates to "compliance review" procedures when there is a dispute over whether the losing member has complied with a DSB ruling. 0 6 A third area of concern focuses on available remedies for noncompliance, especially those procedures used in suspending concessions if a losing member fails to effectively implement WTO rulings, or fails to conform by its compliance deadline.

EXT #1 Chinese noncompliance proves Antigua dispute kills WTO cred Levick, Forbes, ’12 (Richard, “Obama’s Case against China: The U.S. Has a WTO Credibility Case”, 9/18/12,, accessed 7/25/13, JF) The Chinese have two good reasons to scoff dismissively at the Obama administration’s trade case, filed yesterday at the World Trade Organization, which accuses them of unfairly subsidizing auto and auto parts exports. The case specifically targets $1 billion in subsidies during 2009-2011, mainly of exports to developing countries where the automobiles are assembled and purportedly compete with cars manufactured stateside. The U.S. is also about to take further legal action in an ongoing WTO case against China that involves anti-dumping duties levied last year against American car exports to China. China has filed its own counter-complaint with the WTO over anti-dumping duties that Washington had levied on $7 billion-plus in various Chinese goods.) The first reason for the Chinese to balk is fairly obvious. President Obama is announcing the initiative amid the heat of the election and he’s doing so in battleground Ohio. It’s a fair guess the Chinese will try to derail his initiatives by highlighting the blatantly ulterior motives at play. The second reason is even more important because it potentially compromises any case the U.S. might bring before the WTO. It involves an ongoing dispute, dating back to the early part of this century, between the government of Antigua and Barbuda (“Antigua”) and the government of the United States. At issue is the total prohibition by the U.S. of cross-border gambling services provided via the Internet. Antigua has challenged that prohibition. It seems a relatively narrow issue but there’s a catch: the WTO ruled on the matter and came heavily down on the side of Antigua, which is the smallest WTO member to have ever opposed, much less prevailed against, the organization’s largest member in such a proceeding. So far, however, the U.S. has simply not complied with the ruling. We have neither lifted the restrictions nor satisfied a damages penalty that continues to mount annually. It is levied each year the U.S. fails to pay up in full. Typically, the United States takes a pretty high-minded approach to compliance with global regimens of all sorts, from WTO rulings to anti-corruption initiatives. We have aggressively sought a leadership role and more or less achieved it. Caesar’s wife must now be beyond reproach. The consequences of hypocrisy are unacceptable, while only one instance of non-compliance is needed to expose such hypocrisy. Never mind a blatantly political instance like the current Obama case over auto and supply subsidies. Imagine you’re the People’s Bank of China, which has taken a number of steps since 2001 that discriminate against foreign suppliers of electronic payment systems. On September 1, a WTO Panel Report found in favor of a case brought by the U.S. “This decision makes it clear that China should honor its WTO commitments to play by the rules and stop discriminating against American financial services providers,” said U.S. Trade Representative Ron Kirk. But why should it play by the rules? We don’t, at least not in this case. A compromised WTO is only one consequence of our non-compliance. Equally portentous, the WTO could itself approve violations of U.S. intellectual property as fair retaliation for unfair trade practices. In 2010, for example, the U.S. settled a dispute with Brazil over American subsidies to cotton growers, one day before Brazil was to begin sanctions – with WTO authorization – totaling $830 million. The sanctions included tariffs on such items as autos, pharmaceuticals, medical equipment, electronics, textiles, and wheat. Brazil would also have been the first country to infringe American intellectual property rights with the WTO’s blessings. Brazilian farmers would have no longer been charged fees for seeds developed by American biotech companies. American pharmaceutical patents would have been directly violated prior to expiration. The prospective costs to U.S. businesses were estimated at $239 million. The United States blinked then – and it better blink now in its dispute

with Antigua, or risk providing its global competitors with a powerful excuse for why they too can ignore the rules or simply stonewall when called to task for doing so.

EXT #5
Eastern European, Latin American, East Asian regional trade blocs now
Foxley, Carnegie Endowment For International Peace, ’10 (Alejandro, “Regional Trade Blocs: The Way to the Future”, September 16, 2010,, accessed 7/27/13, JF) With global trade talks stalled and lower demand from major economies that were hit hard by the global economic crisis, regional trade agreements are emerging as a way for middle-income countries to increase trade, spur growth, and lower unemployment rates. In a report, Alejandro Foxley analyzes how three regions—Eastern Europe, Latin America, and East Asia—are increasing trade within their borders and building a broader free trade system.

Southeast Asian trade bloc emerging now
Perlez, Chief Diplomatic Correspondent in the Beijing Bureau of the New York Times, ’12 (Jane, “Asian Nations Plan Trade Bloc That, Unlike U.S’s, invites China”, November 20, 2012,, accessed 7/27/13, JF) Ten Southeast Asian nations said Tuesday that they would begin negotiating a sweeping trade pact that would include China and five of the region’s other major trading partners, but not the United States. The proposal for the new trade bloc, to be known as the Regional Comprehensive Economic Partnership, is enthusiastically embraced by China. The founding members, who belong to the Association of Southeast Asian Nations, said at the close of the association’s summit meeting here that the bloc would cover nearly half of the world’s population, starting in 2015. The new grouping is seen as a rival to a trade initiative of the Obama administration, the 11-nation Trans-Pacific Partnership, which includes many of the same countries but excludes China.

EXT # 6
No protectionism – trade blocs increase efficiency of WTO negotitations
Frankel, ’97 (Jeffrey, “Regional Trading Blocs: In The World Economic System”, 1997,, accessed 7/27/13, JF – it’s a web upload of a book) Within the context of multilateral negotiations, it can be slow and awkward to negotiate separately with over 100 small countries. (As of early 1996, there were 112 members of the WTO, with another 27 waiting in line.) Some authors have argued that the costs of negotiation rise with the number of countries involved so that it is easier for a smaller group of countries to negotiate a customs unions first. With a common external trade policy, they can then enter multilateral negotiations as a group (see, e.g., Deardorff and Stern 1992; Kahler 1995b; Krugman 1993; Summers 1991). This is thought to increase the efficiency of the negotiations and to make a satisfactory worldwide agreement more likely. The European Union is certainly the most important example of this. Other groups, such as ASEAN, the Central American Common Market (CACM), and the Caribbean Common Market (Caricom), have also been urged to integrate regionally so they can speak to the larger powers with a unified voice

WTO agrees – trade blocs are net beneficial to multilateral trade
Frankel, ’97 (Jeffrey, “Regional Trading Blocs: In The World Economic System”, 1997,, accessed 7/27/13, JF – it’s a web upload of a book) Our results suggest that the third possibility enumerated above is often the most relevant one. Some countries have tended to open up with respect to all trading partners at the same time that they have opened with respect to members of their own group. This conclusion matches that of a recent WTO report (1995; also Fishlow and Haggard 1992, 60), to the effect that the recent regional arrangements among its members have not been fortresses but have, to the contrary, sometimes helped to promote freer trade worldwide. Thus, the net political effect of the removal of regional barriers can be to support liberalization with respect to nonmembers as well. The effect of further liberalization has in many cases been more than enough to offset any trade diversion resulting directly from the original regional arrangements themselves. Trading blocs can be building blocks rather than stumbling blocks. From the economists’ viewpoint, this verdict, fragile though it may be, is an encouraging one.

EXT #7
Doha Round failure thumps Uniqueness
Reuters, ’11 (“WTO Credibility at risk, warns US trade negotiator”, June 22, 2011,, accessed 7/25/13, JF) Deadlocked negotiations for a global trade treaty are threatening the credibility of the World Trade Organization, the U.S. ambassador to the trade body said on Wednesday. Negotiators meeting to discuss the long-stalled Doha round moved no closer to agreeing even a scaled-back treaty that would focus on the needs of poor states, agreeing only to keep negotiating for another month and then consider their options. "What's at risk is the WTO being seen as an effective forum for negotiating trade liberalisation," U.S. ambassador Michael Punke said in a telephone interview following a morning of deliberations at the WTO. Ten years of negotiations in the 153-member WTO have failed to seal an accord that could generate billions of dollars and alleviate poverty by freeing up trade in goods and services. A stop-gap deal proposed by WTO chief Pascal Lamy last month required that rich countries make good on promises made in 2005 to trim cotton subsidies, import most goods duty-free from least-developed countries and simplify sourcing rules for exporters in poor countries. Originally that stop-gap was to take effect while negotiators try and address more divisive market-opening issues. But trading countries led by the United States want to expand the slimmed-down agreement in a way that will distribute the burden of commitments to poor states. A potential expanded agreement could include issues from a reform of fisheries subsidies to tariff cuts for environmental goods and harmonisation of border controls -- sensitive issues whose inclusion further trims chances of agreement by the time trade ministers gather in Geneva in December. An idea floated by the European Union to freeze tariffs while negotiations continue was welcomed by the United States and Australia during Wednesday's meeting, but opposed by developing countries such as India and Brazil. Negotiators agreed they should assess chances of forging a December agreement by late July, and if necessary postpone that deadline again. "It is also very clear .. that we need to consider the (post-December) work on (Doha)," Lamy told negotiators. (Reporting by Juliane von Reppert-Bismarck; editing by Alistair Lyon)

DOHA Round talks are dead, kills WTO cred
Sutherland, Special Representative of the Secretary General of the UN for Migration and former Director General of the WTO, ’12 (Peter, “The Bilateral Threat To Free Trade”, Dec. 31, 2012,, accessed 7/25/13, JF) The Doha Round of global trade talks appears to have died this year, almost without a whimper. While a small portion of the project may be saved, the essential reality is that this is a unique failure in the history of multilateral trade negotiations, which have transformed the global economy since World War II. Many of the seven previous rounds of negotiations – including the Uruguay Round, which resulted in the establishment of the World Trade Organization (WTO) in 1995 as the successor to the General Agreement on Trade and Tariffs (GATT) – took years to complete, but none died of neglect or disinterest. Today’s indifference is particularly, though not exclusively, evident in the United States. President Barack Obama was silent on the issue in his re-election campaign, and breathed scarcely a word about it in his first campaign, too. One wonders whether what is at stake is even fully understood in some capitals.

Doha round trade talk failure thumps the aff
Japan Times, ’12 (“Russia as a WTO member”, January 16, 2012,, accessed 7/25/13, JF) Although Russia’s joining the world trade body was a bright aspect of the WTO conference, it was accompanied by a setback. The conference chairman and Nigerian trade minister Olusegun Aganga made it clear in the chairman’s statement that the WTO has given up on concluding the Doha round of multilateral trade rules negotiations in the near future. As EU trade commissioner Karel De Gucht said, the WTO’s “credibility has been seriously damaged” by its failure to conclude the Doha round.

EXT # 8
WTO fails at dispute: 10 reasons
Walker, Trade Policy Advisor at the Fairtrade Foundation, ’11 (Aurelie, The Guardian, 14 November, 2011,, accessed 7/25/13, JF) Ten years ago, a new World Trade Organisation that put developing country needs at the centre of the international trade negotiation agenda was proposed. The Ministerial Declaration adopted at the start of the Doha Development Round of trade negotiations, on 14 November 2001, was a promising response to the anti-globalisation riots of the 1990s. But the WTO membership has failed to deliver the promised pro-development changes. Finding "development" in the Doha Development Round today is like looking for a needle in a haystack. Developing countries have been completely sidelined by the economic and political interests of global powers. Here are 10 examples of how the WTO has failed the poor: 1. Cotton: the Fairtrade Foundation revealed last year how the $47bn in subsidies paid to richcountry producers in the past 10 years has created barriers for the 15 million cotton farmers across west Africa trying to trade their way out of poverty, and how 5 million of the world's poorest farming families have been forced out of business and into deeper poverty because of those subsidies. 2. Agricultural subsidies: beyond cotton, WTO members have failed even to agree how to reduce the huge subsidies paid to rich world farmers, whose overproduction continues to threaten the livelihoods of developing world farmers. 3. Trade agreements: the WTO has also failed to clarify the deliberately ambiguous rules on concluding trade agreements that allow the poorest countries to be manipulated by the rich states. In Africa, in negotiations with the EU, countries have been forced to eliminate tariffs on up to 90% of their trade because no clear rules exist to protect them. 4. Special treatment: the rules for developing countries, called "special and differential treatment" rules, were meant to be reviewed to make them more precise, effective and operational. But the WTO has failed to work through the 88 proposals that would fill the legal vacuum. 5. Medicine: the poorest in developing countries are unable to access affordable medicine because members have failed to clarify ambiguities between the need for governments to protect public health on one hand and on the other to protect the intellectual property rights of pharmaceutical companies. 6. Legal costs: the WTO pledged to improve access to its expensive and complex legal system, but has failed. In 15 years of dispute settlement under the WTO, 400 cases have been initiated. No African country has acted as a complainant and only one least developed country has ever filed a claim. 7. Protectionist economic policies: one of the WTO's five core functions agreed at its inception in 1995 was to achieve more coherence in global economic policymaking. Yet the WTO failed to curb the speedy increase in the number of protectionist measures applied by G20 countries in response to the global economic crisis over the past two years – despite G20 leaders' repeated affirmations of their "unwavering" commitment to resist all forms of protectionist measures. 8. Natural disaster: the WTO fails to alleviate suffering when it has the opportunity to do so. In the case of natural disaster, the membership will have taken almost two years to agree and implement temporary trade concessions for Pakistan, where severe flooding displaced 20 million people in 2010 and caused $10bn of damage. Those measures, according to the International Centre for Trade and Sustainable Development, would have boosted Pakistan's exports to the EU by at least €100m this year. 9. Decision-making: the WTO makes most of its decisions by consensus – and achieving consensus between 153 countries is nearly impossible. But this shows another failure of the WTO: to break the link between market size and political weight that would give small and poor countries a voice in the trade negotiations. 10. Fair trade: 10 years after the start of the Doha Development Round, governments have failed to make trade fair. As long as small and poor countries remain without a voice, the role of campaigning organisations, such as Traidcraft and Fairtrade Foundation,

which are working together to eliminate cotton subsidies, will remain critical. The WTO has failed to live up to its promises over the past decade, which reveals a wider systemic problem in the global community. True and lasting solutions to global economic problems can only come when the model of global competitiveness between countries becomes one of genuine cooperation.

IPR Credibility

1. Turn: GMOs independently risk extinction and destroy small farms
Yaffe, 1L at King Hall, ’91 (Joseph, “Agricultural Biotechnology: Implications For the Environment And The Family Farmer”, 1991,, accessed 7/27/13, JF) But for every possible benefit of biotechnology, there is a corresponding hazard. Biotechnology developments may result in environmental catastrophe and irreversible damage to the earth's ecology. Once allowed to escape the laboratory, genetically engineered organisms could upset the fragile balance of the environment in ways unforeseeable and possibly unpreventable. The dangers posed by the release of such powerful technology might very well outweigh any potential beneficial applications. Even if fears of the risks posed by biotechnology prove to be groundless, a question remains regarding who is to benefit from the influx of biotechnology on the farm. For more than 250,000 small farms in the United States, biotechnology could mean ruin. After barely surviving the debt load of the 1970's and 1980's, America's family farms may be hard pressed to pay for a new technology which their larger industrialized competitors might afford. Congress has determined that the family farm structure in America must be maintained, but it is uncertain whether biotechnology and the small farm may peacefully coexist.

2. Turn: IPR Enforcement efforts increase GMO self-policing
Kerle, Columbia Science and Technology Law Review, ’07 (Clemens, “International IP Protection For GMO – a Biotech Odyssey”, 2007,, accessed 7/24/13, JF) The analysis so far has shown that patents are essential for private innovations in this field. However, two other ways of protecting GMOs exist, which are seemingly of enormous potential, particularly for the ag ricultural sector: through contract agreements or self policing techniques. Parties can use contracts to establish IP -like protection, or to extend granted statutory rights. 44 However, like every other IP protection technique that has been described so far, “bag label,” “seed wrap” licenses and the like come with a significant disadvantage for the inventor: enforcement of his rights is difficult and controversial. 45 Seed developers would have to send out employees to test crops of non-customers for protected characteristics 46 in order to detect infringers and collect evidence. This might be a very labor-intensive task due to the high degree of similarity between protected and unprotected types of plants. 47 Besides, contracts could obviously not bind those who had not, or who could not be deemed to have accepted their terms. From the inventor’s perspective, the solution might lie in “self-policing” technologies – means to prevent the reproduction of plants. Farmers growing certain costs). 43 crops such as corn are already supplied with seeds that do not produce progeny with the same quality, 48 and are forced to purchase new seeds every year. Modern biotechnology has begun to offer even more effective mean s of controlling the use of GMOs: Genetic Use Restriction Technologies (GURTs). 49 These include the famous “terminator gene” – which makes plants containing the gene kill its seed by producing a toxin, thus effectively sterilizing the organism. Th is appears to be only the first step. 50 More sophisticated methods already appear on the horizon: In one embodiment of the technology, it is possible to introduce into the seed a genetic ‘switch’ that will express, or turn off, the toxin production when the seed is exposed to a particular chemical. This in effect supplies a chemical ‘password’ to seed activate germination, and which can be used to control the terms of seed usage from year to year. Yearly application of the control chemical, obtained from the seed owner for payment, would allow the owner to activate or deactivate seeds in return for prescribed payment. One can easily envision other types of switches, sensitive to temperature, precipitation, soil alkalinity, or other environmental f actors, that could be used to limit use of the seed to certain geographical regions or

seasonal applications. 51 Such prophecies for the agriculture of tomorrow have led to public outcry in some regions 52 and will confront legal systems with various complex issues. These technological control mechanisms potentially pr ovide the inventor with more control than any legal means could ever do.

3. Self-policing risk instability and starvation
Stein, 05 (Haley, “Intellectual Property and Genetically Modified Seeds: The United States, Trade, and the Developing World”, Spring 2005, Vol. 3, No. 2,, accessed 7/24/13, JF) One of the major frustrations for the private seed industry is the perseverance of the seed saving tradition among farmers. Large businesses such as Monsanto now require purchasing farmers to sign contracts that prevent the saving of genetically modified seed.91 However, these contracts only work if farmers abide by them, and enforcement is especially difficult in developing nations.92 ¶36 One of the most controversial developments in recent years is the biological means to enforce these paper contracts and also to avoid patent limitations: Terminator Technology.93 In 1998, Delta and Pine Land Company (DPL) partnered with the U.S.DA to patent the Technology Protection System (“Terminator” Technology).94 By modifying seeds with certain genes, companies ensure that next generation of seeds self-destructs and is unable to reproduce.95 A few days after the patent was issued, Monsanto bid $1.76 billion to acquire it from DPL, an indication of the high stakes involved with biotechnology patents.96 The international protest from farming, environmental, and development agencies was so great that in 1999, Monsanto said it would not market the Terminator Technology.97 Despite this promising action, a spokesperson for the USDA, a co-developer of the technology, stated that the terminator process was still several years away from being commercially available, indicating that plans for future use remain.98 Other major agriculture businesses in the United States and the United Kingdom are developing their own sterile seeds.99 ¶37 A Monsanto spokesperson claimed there was no conspiracy by the agriculture industry to create a dependency on seed products and that the technology is simply “a way to protect their *company’s+ billions of dollars of investment into research on biologically-engineered products.”100 Yet, Terminator Technology has brought seed-saving to the forefront of international policy agendas. While businesses espouse the benefits of Terminator Technology by citing, for example, the hope that more innovative and advantageous seeds would be developed and research on staple crops would increase, many international lobbying groups and activists do not see the technology in the same light.101 Critics argue that small farmers will be the most affected by the technology – being least able to afford more expensive seeds on a yearly basis.102 There are also fears that sterile seeds may have a disastrous effect on the global food supply and are a serious problem for developing world farmers, the majority of whom depend on seed saving.103

4. No Solvency – Self policing kills innovation
Kerle, Columbia Science and Technology Law Review, ’07 (Clemens, “International IP Protection For GMO – a Biotech Odyssey”, 2007,, accessed 7/24/13, JF) GURTs can certainly overcome the imitation problem that the inventor faces. But contrary to patents, they are not limited rights granted by the public in exchange for something novel, non-obvious and useful. Therefore, whether a GMO enjoys technological protection or not , and more importantly, for ho w long, is largely within the discretion of the seed companies that can use such technologies . 54 That means that firms could potentially acquire market power fo r products that woul d otherwise not be protected. Even if this was improbable due to the availability of close substitutes, which would be

likely in such a case, GURTs could artificially extend th e IP protection beyond its statutory length. The existence of GURTs could induce more research into new GMOs, which could be subsequently protecte d by these means. In this way, a prediction as to their effects might resemble the patent incentive theo ry. However, one of patent law’s crucial features, which is of great benefit for the public , is the disclosure requirement. If GURTs became sufficiently effective and subsequently replaced patents, the public would be deprived of this benefit. Obviously, widespread use of GURTs might also have implications for agronomic development 55 – research and further improvement of the plant containing a terminator gene, not being able to be propagated any longer, would most probably be impossible or more difficult. Basically, innovation that bui lds on previous results would be largely impeded. Furthermore, a study 56 on the welfare implications of different levels of appropriability 57 in the seed industry l eads to the conclusion “t hat the optimum level of IPR appropriability is greater than that whic h existed in the North American seed corn market in 1996 and 1997, but that it is lower than would exis t if GURTs were to become (outright “terminator bans” might be legally complicated). 54 Of course, as with digital rights manageme nt, absent laws preventing them, the length of such a monopoly could also be shortened by those seeking to disable or circumvent the protection. However, it seems currently im possible to determine the likelihood of these scenarios. 58 For these reasons, this chapter can be concluded as follows: While protection against GMO piracy through patents appears to be an advantageous policy choice, the level of beneficial protection can be exceed ed. The above results indicate that selfpolicing means such as GURTs might have th e potential to lead to such results. The implications of this finding for IP po licy will be further addressed below.

5. No Solvency – Agribusiness IPR prevents distribution of food
Stein, 05 (Haley, “Intellectual Property and Genetically Modified Seeds: The United States, Trade, and the Developing World”, Spring 2005, Vol. 3, No. 2,, accessed 7/24/13, JF) There are roughly 840 million people worldwide who do not receive enough energy through food to live actively.163 Many of these people are concentrated is the world’s poorest seventy countries.164 Malnutrition plays a significant role in nearly 12 million deaths per year of children under five.165 While there are 80 million new people to feed yearly, world grain production growth decreased from three to one percent over the last decade.166 ¶58 Genetically modifying technology plays a significant role in food growth and production.167 Strong IP protections on the products of this technology are important to foster the development of improved seeds that are resistant to insects, diseases, droughts, and pesticides while increasing crop yield and nutritional content.168 Yet, in order for these improvements to be effective, products must be made available to the people who need them the most. A balance must be struck between these two diverging interests. ¶59 First, I will look at how genetically modified seeds can potentially alleviate some of the challenges facing the developing world. Second, I will look at how public and private partnerships can be successful vehicles for change. Partnerships can balance the need for strong IP protections for businesses while maintaining developing world access to genetically modified seeds.

6. SQUO Solves copycat drugs - Tax incentives
Kaufmann, U.S. Department of State, ’08 (Judith, “Patented medicines are not to blame for lack of access to life-saving drugs”, 23 April, 2008, l#axzz2ZG5uBh4Z, accessed 7/24/13, JF)

There are issues that need to be addressed, including how to encourage even more innovation, especially for drugs with limited markets or which treat diseases mostly prevalent in low- and middleincome countries. Developed countries can offer tax incentives to encourage innovation in such areas, much as the Orphan Drug Bill in the United States does. (This U.S. law, administered by the Food and Drug Administration, deals with medications used to treat diseases and conditions that rarely occur. Since there is little financial incentive for the pharmaceutical industry to develop such medications, "orphan drug status" gives a manufacturer specific financial incentives to develop and provide such medications.) Government research dollars can be used to do basic research, as the National Institutes of Health does in the United States.

7. P3s check back disease spread
(Judith, “Patented medicines are not to blame for lack of access to life-saving drugs”, 23 April, 2008, l#axzz2ZG5uBh4Z, accessed 7/24/13, JF) Public-private partnerships are showing the way in innovation: The Medicines for Malaria Venture (MMV -- see "Malaria: Partnering to Find a Cure") and the International AIDS Vaccine Initiative (IAVI) are two good examples of such partnerships. MMV, for instance, has 21 drug development projects to ensure that the next generation of treatment is available when drug resistance overtakes current malaria treatment options. As an article in the Washington Post recently suggested, "These entities are in effect nonprofit virtual drug companies configured to discover and develop drugs and vaccines for neglected diseases."

8. Alt cause to drug resistance: foreign drug companies
Khazan, Washington Post, ’13 (Olga, “How fake drugs cause the spread of untreatable TB in developing countries”, February 5, 2013,, accessed 7/24/13, JF) But simply stopping the flood of fake drugs into each country won’t entirely fix the problem, the authors say, because there’s a difference between drugs that are designed to deceive patients and those that are simply poorly made or stored. Creating a so-called falsified medicine, which has little or no active ingredient, can be considered a criminal act. But then there are the drug companies that make mistakes, pills that are stored improperly, mislabeled bottles or sloppy compounding, among other potential errors. “Often, these bad drugs are just poorly made or poorly stored,” Bate said. “If all you do is beef up customs, you’re not going to deal with the legal substandard products on the market.” To catch bad batches of drugs, Bate recommends trying a tactic similar to the international community’s response to fake malaria drugs — setting up strong donor and in-country facilities to test the medicines before they’re sold. “Right now, most TB doctors are just assuming that there’s not a problem with medicines,” he said. “If someone’s not reacting, they keep giving them the drug in hopes it will start working.”

Ext #1
Biotechnology threatens biodiversity and ecological catastrophe
Yaffe, 1L at King Hall, ’91 (Joseph, “Agricultural Biotechnology: Implications For the Environment And The Family Farmer”, 1991,, accessed 7/27/13, JF) To some, the current interest in biotechnology can be likened to the excitement that surrounded nuclear technology development and its subsequent failure to live up to its promised rewards without imposing severe environmental risks. 4 Like any powerful technology, genetic engineering research necessitates rational foresight and planning in order to minimize some of the risks that biotechnology entails. Fears of biotechnology center around the threat of potentially dangerous or uncontrollable microorganisms leaking or escaping into the environment. The environment consists of a "web of highly synchronized relationships which have developed over millions of years." 5 It is feared that the release of genetically engineered organisms into the environment will disrupt the balance of this web, setting off a chain of reactions which once begun will be irreversible and possibly catastrophic . The genetically superior "supercow" might trample the dairy farmer. 1 6 Any possible environmental benefits that agricultural biotechnology could provide might be outweighed by the threat to the environment that the release of a not yet fully understood technology entails.

EXT #2
U.S. IPR enforcement focuses on GURT development
Dutfield, ’07 (G. “Social and Economic Consequences of Genetic Use Restriction Technologies in Developing Countries”, 3/14/2007, _Technologies_in_Developing_Countries, accessed 7/27/13, JF) The development of this technology and other GURTs that aim to achieve the same results seems to reflect the increased determination of the private sector, in this case – and in common with hybrids – with the assistance of a public agency, to eliminate the replanting of proprietary seeds, which is also reflected in the increasing use of licensing agreements stipulating that customer-farmers must not replant their patent-protected seeds. Such agreements would, of course, become unnecessary if this technology is widely used. The USDA has been developing GURTs with the private sector as part of the US government’s wider and long-term effort to protect the IP of its businesses in overseas markets including developing countries. According to a spokesman from the USDA, the aim is to make the technology to be ‘widely licensed and made expeditiously available to many seed companies’, in order ‘to increase the value of proprietary seed owned by US seed companies and to open up markets in Second and Third World countries’ (quote in RAFI, 1998). Dr Harry Collins of Delta and Pine Land, coowner of the patent with the USDA, claimed that the patent ‘has the prospect of opening significant worldwide seed markets to the sale of transgenic technology for crops in which seed currently is saved and used in subsequent plantings’.

Development of GMO k2 GURTs
Visser, et. al 2k (Eaton, Louwaars, van der Meer, Beekwilder, van Tongeren, “Comission on Genetic Resources for Food and Agriculture: Potential Impacts of Genetic Use Restrictions Technologies (GURTs) On Agrobiodiversity and Agricultural Production Systems”, May 2000,, accessed 7/27/13, JF) To the extent that GURTs do lead to greater investment in agricultural R&D an d therefore greater productivity, there will be benefits not only for farmers and breeders but also for consumers. However, there is one important caveat in relation to this conclusion that lies in the fact that the application of GURTs is accomplished through the generation of GMOs. The capital costs of developing GM crops in general, including regulatory costs, legal costs and possible product liabilities, are high, and as such the application of GURTs in minor crops, or crops for limited niches, is unlikely to attract private investment. It has been estimated that $ 30 million or more is required to commercialize a GM crop, not counting perhaps an additional $ 6 million to cope with regulatory costs (Christian Science Monitor, August 30, 2001). By this analysis, it is likely that GURTs would n o t be applied to m nor crops, and this would, if anything, limit the scope of private sector R&D, and thus of perceived benefits not only to breeders, but also to farmers and consumers.

Ext #3
Strong Agribuisness IPR impedes innovation
Kerle, Columbia Science and Technology Law Review, ’07 (Clemens, “International IP Protection For GMO – a Biotech Odyssey”, 2007,, accessed 7/24/13, JF) When it comes to biopatents in general, scholars seem particularly concerned about overly broad patents, 34 patent “thickets” impeding further innovation through largely increased transaction costs – the now famous “anti-commons” theory, 35 “bracketing,” 36 detrimentally low non-obviousness and utility standards 37 and blocking/increasing costs of ongoing innovati on through the patenting of upstream “research tools.” 38

Ext #5
GURTs starve subsistence farmers
Dutfield, ’07 (G. “Social and Economic Consequences of Genetic Use Restriction Technologies in Developing Countries”, 3/14/2007, _Technologies_in_Developing_Countries, accessed 7/27/13, JF) The main problem with GURTs – if we give advocates the benefit of the doubt and accept for a moment that the technologies will encourage small farmer-oriented research – is its restriction on seed replanting, exchange, diffusion and on-farm breeding activities. To explain the reason, it is important to understand that many subsistence farmers in the developing countries generally acquire seeds from their own farms or from those of neighbours. The following two reasons are important for maintaining the freedom to do this. First, subsistence farmers often lack funds or credit to buy seeds at the beginning of each planting season. For them, a considerable investment is required for purchasing seeds. If yields from GURT-protected seeds prove to be disappointing, and if such seeds are more dependent on inputs like agrochemicals than traditional varieties (which is often the case with modern varieties), the farming com-munities will suffer destitution. And commercial farmers may find over time that the proportion of non-terminator modern varieties declines so that they have little choice but to buy terminator seeds

*Ext #8
Alt cause drug resistance – Animal husbandry
WHO, ’13 (“Antimicrobial Use”, 2013,, accessed 7/27/13, JF) Worldwide, the bulk of antimicrobials administered are not consumed by patients, but rather are given to animals, including cattle, sheep, chicken, and fish, for purposes of food production. Antimicrobials are used: 1. to treat disease in sick animals; 2. prophylactically to avoid disease in animals at high risk; and 3. most controversially as growth promoters in order to raise larger animals for the same amount of animal feed and investment. In addition to their use in animal husbandry, antimicrobial additives are used in companion animals (including pets), plant agriculture (fruits, vegetables, and orchids, etc.), and industrial applications (oil pipelines, industrial paints). The use of immense quantities of antimicrobials in food production and the unintended wide release of antimicrobials into the environment through animal and human sewage and runoff water from agricultural sites has public health consequences, most clearly seen in resistant zoonotic bacteria associated with foodborne disease in humans. Of great concern, though of uncertain qualitative and quantitative import is the potential passage of resistance genes from bacteria of animal origin to human pathogens.

Laundry List of factors means disease spread inevitable
WHO, In many countries, lack of funds and inadequate use of existing cost-effective tools to fight infectious diseases are compounded by a failure to take account of the health impact of other sectors. All too often, the key determinants of health - as well as the solutions - lie outside the direct control of the health sector. They are rooted in areas such as sanitation and water supply, environmental and climate change, education, agriculture, trade, tourism, transport, industrial development and housing. Yet many countries lack the capacity to measure the impact of other sectors on health. Unless these issues are addressed, it can be difficult to prevent or even control some infectious diseases. The link between environmental quality and health, for example, is critical. Over 10% of all preventable ill-health today is due to poor environmental quality - conditions such as bad housing, overcrowding, indoor air pollution, poor sanitation and unsafe water. Bad housing and poor environmental conditions have the greatest impact on acute respiratory infections and diarrhoeal diseases. And children are worst affected - accounting for as much as two-thirds of all preventable ill-health due to environmental conditions. In developing countries, about 700 million people - mainly women and children in poor rural areas - inhale harmful smoke from burning wood and other fuels. They are increasingly at risk from acute respiratory infections, especially pneumonia. Over a billion people lack access to safe drinking water - increasing their vulnerability to diarrhoeal and parasitic diseases. In Africa, Asia and Latin America, at least 600 million urban dwellers live in unhealthy homes or neighbourhoods. Almost 800 million people worldwide lack access to health services. Elsewhere, changes in land and water use can also have a major impact on the incidence and pattern of disease. Deforestation, agricultural development, dams and irrigation schemes can trigger outbreaks of parasitic or other infectious diseases through favouring the spread of malarial mosquitos or freshwater snails that spread schistosomiasis. Most at risk are the over half a billion poor people who live in ecologically fragile regions. Other diseases affected by environmental change include lymphatic filariasis, dengue fever, leishmaniasis, Chagas disease and bacterial meningitis. Meanwhile, an increase in global warming could have a similar impact on the spread of tropical diseases. A temperature rise of only 1-2oC over the next 50 years could extend the

range of malarial mosquitos further north - increasing the proportion of the world's population at risk of malaria and other mosquito-borne diseases such as dengue and lymphatic filariasis. Poverty and malnutrition are other key factors that affect health. Malnutrition is particularly lethal in combination with infectious diseases such as pneumonia, malaria, measles and diarrhoeal diseases - the major killer diseases affecting children. It is an underlying factor in over half of all child deaths. In 1997, an estimated 160 million children were moderately or severely malnourished. More than one in four of the world's population were estimated to be living in poverty - over a billion of them with incomes of less than $1 a day. Even in industrialized countries, 100 million people live below the poverty line.

GURTs Bad Misc
Gurts kill seed biod
Dutfield, ’07 (G. “Social and Economic Consequences of Genetic Use Restriction Technologies in Developing Countries”, 3/14/2007, _Technologies_in_Developing_Countries, accessed 7/27/13, JF) Second, many small-scale farmers in developing countries do much more than simply grow seeds produced elsewhere. Indeed, local varieties are themselves the result of generations of improvement through on-farm selection and experi-mentation, and nowadays such practices can involve modern varieties which may need to be adapted to suit local conditions. From Neolithic times, farmers have set aside some of their harvested seeds for replanting. They selected such seeds on the basis of desirable traits such as drought or disease resistance or frost tolerance. Over the generations, this practice resulted in ever-increasing quantities of locally adapted varieties known as ‘landraces’ or (less formally and more politically cor-rect) ‘folk varieties’. The fact that, despite the phenomenon of genetic erosion, so many landraces still exist and are themselves undergoing improvement by local farmer-breeders, suggests that they meet a need that is not provided by modern varieties alone. Moreover, the availability of both landraces and modern varieties allows for collaborative breeding and varietal selection programmes between farmers and professional breeders that aim to address the specific needs of poor farmers. GURTs, if widely adopted, can well undermine such initiatives.

Small farms k2 ag biod
Visser, et. al 2k (Eaton, Louwaars, van der Meer, Beekwilder, van Tongeren, “Comission on Genetic Resources for Food and Agriculture: Potential Impacts of Genetic Use Restrictions Technologies (GURTs) On Agrobiodiversity and Agricultural Production Systems”, May 2000,, accessed 7/27/13, JF) Farmers in autonomous production systems mainly rely on their own seeds and animals adapted to their particular agro-ecosystems, their farming pr actices and cultural preferences. This does not mean that there is no utilization of varieties and breeds stemming from the private sector. On the contrary, as far as accessible these varieties and breeds are used by farmers to test under their own conditions, and most of all to recombine with their own germplasm to improve that germplasm and ‘breed’ new varieties and breeds (Hardon et al. , 2000). In addition, the public sector, represented by the national agricultural research systems and international agricultural research institutes (NARS and CGIAR), acts as a channel by which major genetic improvements developed in the private sector, are made available to autonomous farming systems. On the other hand, for sustained breeding efforts, the breeding industry is dependent on the continuing availability of genetic resources not available in their own genepools, in particular in cases of new diseases and ecosystem changes and in a response to changing consumer demands. Preferably, these genetic resources should then be supplied from well-documented, wellresearched and easily accessible ex situ collections. Obviously, the maintenance of agrobiodiversity in autonomous farming systems or the survival of wild relatives in na tural ecosystems as a much wider source of genetic resources, is only of secondary concern to most private breeders, and often regarded as a mainly public responsibility.

GURTs kill aquaculture biodiversity
Visser, et. al 2k (Eaton, Louwaars, van der Meer, Beekwilder, van Tongeren, “Comission on Genetic Resources for Food and Agriculture: Potential Impacts of Genetic Use Restrictions Technologies (GURTs) On Agrobiodiversity and Agricultural Production Systems”, May 2000,, accessed 7/27/13, JF) With increasing GURT application, crop development in farmers’ seed systems may lag behind crop development in industrial seed systems due to limited or even absent access to novel industrial innovations under GURT control. To safeguard long-term on-farm maintenance of plant genetic resources, increased investments in public plant breeding, including participatory plant breeding, may be needed to correct the increasing gap in absorption of innovations. This issue is discussed in more detail in chapters 3 and 4. Similar assumptions can be made for more distant applications of GURTs in the farm animal sector. Whereas overlaps of germplasm use and exchange between industrial and autonomous farming systems in trees production are more limited, and as a consequence no GURT varieties of interest to the small-scale sector are likely to be offered on the market, negative effects on agrobiodiversity (loss of species and genetic dive rsity) may remain more limited. However, in aquaculture, some species, in particular tilapia and crustaceans, are grown in small-scale and large 15 scale systems. Growing dependence of the small-scale sector on seed provided by industry m a y have a negative effect on the gene tic diversity of species maintained in aquaculture.

GURTs damage small farms – 3 reasons
Visser, et. al 2k (Eaton, Louwaars, van der Meer, Beekwilder, van Tongeren, “Comission on Genetic Resources for Food and Agriculture: Potential Impacts of Genetic Use Restrictions Technologies (GURTs) On Agrobiodiversity and Agricultural Production Systems”, May 2000,, accessed 7/27/13, JF) Expected effects of the introduction of GURT on farmers’ seed systems include: Reduced access to genetic resources and technologies Farmers tend to use all genetic resources available to them for local crop development. Materials that are derived from formal plant breeding serve to introduce important new traits such as new disease resistance alleles. The widespread use of V-GURTS or TGURTs for such traits would cut off local crop development from formal plant breeding accomplishments. GURT-protected modern varieties would not be available for further introgression and adaptation to local conditions, either or not as part of participatory breeding initiatives. Also, public initiatives to support breeding for the rural poor, such as performed by the CGIAR centres and NARS, may face problems to access new traits (e.g. disease resistances) from commercial breeding programmes. Risks of reduced seed security Serious seed security risks can be expected for t hose already seed insecure poor farmers who are not able to save their own seed for the next season. Risks of crop losses due to absent viability exist when poor farmers access the grain market for their seed (in many areas over 20% of farmers), often at a late moment. Similar risks may follow from food aid consisting of GURT containing seed and distributed to disaster-struck communities, since relief food supplies are often used as seed. Less diversity When breeding and marketing of GURT-protected crop varieties proves successful, such varieties are likely to replace a number of farmers’ varieties which now constitute the cultivated germplasm. As a consequence total genetic diversity in farmers’ fields might further decrease. This has been elaborated in chapter 2.1.

TRIPS = political instability, economic instability, decreased investor confidence
Stein, 05 (Haley, “Intellectual Property and Genetically Modified Seeds: The United States, Trade, and the Developing World”, Spring 2005, Vol. 3, No. 2,, accessed 7/24/13, JF) TRIPS provisions on genetically modified materials create policies highly unpopular with the populations of developing nations, making enforcement difficult.178 Resistance to TRIPS has been growing for years in developing nations, some of which has turned violent. In India in 1998, protesters set fire to Monsanto trial fields during a disobedience operation called “Operation Cremation Monsanto”.179 Following the India protests and similar protests in Bangladesh, farmers in the Philippines staged violent protests at the offices of Monsanto.180 This additional instability in developing nations is not only troublesome for fragile governments, but also economically detrimental in the long and short term. These reactions also dissuade foreign companies from investing in countries that react violently to their policies and products, thereby keeping valuable capital and jobs out of the country.181

TRIPS destroys the economies of developing countries
Stein, 05 (Haley, “Intellectual Property and Genetically Modified Seeds: The United States, Trade, and the Developing World”, Spring 2005, Vol. 3, No. 2,, accessed 7/24/13, JF) Agriculture products, staple crops in particular, are a fundamental resource for the poor. Drought, poor soil, plant disease, and political instability all contribute to the dangers of malnutrition and poverty.169 Genetically engineered seeds potentially have the ability to combat malnutrition and poverty by creating specialty crops with high productivity, better nutritional value, and enhanced resistance to disease.170 Currently, crop yields in Africa are far below their genetic potential. Grain imports now comprise twenty-five percent of grain consumption in Africa—a dependency that has only increased over the past three decades.171 ¶61 Rising agricultural productivity is directly related to economic growth in developing nations.172 Agriculture is not only important for producing enough food, but it is key to job creation and employment in most agriculturally based developing nation economies.173 Small farms are the “engine for progress” in rural areas.174 In many developing nations, sixty to ninety percent of citizens depend on farming for their livelihood.175 Developing nations also need to increase agriculture exports in order to spur economic growth.176 Fair access to trade is therefore fundamental for developing nations. Trade issues are closely connected to social and economic issues, “policies without immediate economic gain will upset the fragile economic and social balance in developing nations.”177 Unfortunately, it is not clear developing nations will experience immediate economic gain from TRIPS.

Very good summary card of relationship
Stein, 05 (Haley, “Intellectual Property and Genetically Modified Seeds: The United States, Trade, and the Developing World”, Spring 2005, Vol. 3, No. 2,, accessed 7/24/13, JF)

The long and complex history of intellectual property rights and seed technology illustrates how political and business motives play an integral role in deciding policy . It also illustrates the importance of legal decisions and interpretation. Judicial decisions in the United States played a major role in developing intellectual property rights not only for the United States, but for the world. Many of today’s large agribusinesses are founded upon American case law. Domestically, the United States developed a complex IP regime over a long period of time. Many developing nations are just beginning this process. Despite this, there is pressure from developed nations to accelerate this process and implement sophisticated IP regulations. As the world leader in IP protections for the life sciences, the United States, through the USTR, exerts this pressure on developing nations and maintains its dominance through strict trade agreements like TRIPS. ¶72 Strong IP protections for genetically modified seeds are partly responsible for the rapid growth and ingenuity of new seed varieties. Yet, while TRIPS resulted in great benefits for science and large agribusinesses, developing nations do not stand to gain nearly as much from groundbreaking technological advances. An imbalance exists between the benefits derived by the Northern hemisphere and the toll taken on the Southern hemisphere with respect to knowledge transfer. ¶73 Public-private partnerships have the potential to even out this imbalance. These partnerships can fill the void left by the private sector in addressing public needs. As illustrated by existing partnerships, developing nations can benefit from genetic technological advances while still satisfying the needs of the private sector.

MO actors
Stein, 05 (Haley, “Intellectual Property and Genetically Modified Seeds: The United States, Trade, and the Developing World”, Spring 2005, Vol. 3, No. 2,, accessed 7/24/13, JF) CGIAR is also an umbrella organization for other efforts to alleviate poverty and strengthen food security in Africa. The African Rice Center (“WARDA”) is funded by CGIAR and based in the Ivory Coast.190 WARDA encourages partnerships on all levels to increase the productivity and profitability of rice. In particular, they are working on a variety of hybrid rice that combines African genetic traits with productive Asian species (“NERICA”).191 In trials, use of NERICAs increased productivity by about twenty-five to two hundred and fifty percent.192 ¶67 The Public Intellectual Property Resource for Agriculture (“PIPRA“) is another example of a public/private partnership formed to alleviate the difficulties experienced by the public sector in securing access to technologies .193 The organization’s purpose is to aid “public sector agriculture resource institutions *in+ achiev*ing+ their public mission by ensuring access to intellectual property to develop and distribute improved staple and specialty crops.”194 PIPRA is working with the USDA and foreign agencies to create an IP asset database of all patented agriculture technologies. This would allow public sector researchers to stay informed about who holds patents and who is currently conducting research.195 ¶68 The Meridian Institute is another non-governmental organization with a mission to solve problems and conflicts that result from international environmental, health, economic, and social issues. The Meridian Institute hopes to start a dialogue about agriculture issues between policy-makers, industry representatives, NGOs, scientists, academics, and other key players.196 ¶69 Efforts such as these demonstrate how strong IP protections can be balanced with the needs of the developing world.

CP Solvency
Stein, 05 (Haley, “Intellectual Property and Genetically Modified Seeds: The United States, Trade, and the Developing World”, Spring 2005, Vol. 3, No. 2,, accessed 7/24/13, JF) Private firms now lead in research and development of GM seeds—a role once dominated by governments and international public institutions.182 This poses a variety of challenges for developing nations. While the aim of the private sector is to increase profits, the priorities of developing nations are to fight poverty and protect public health.183 The long-term decline in public sector research diminished the incentives for sharing access and genetic information on newly developed seeds. 184 ¶64 There is an international movement to increase public sector efforts to create crops that benefit poor farmers.185 In order to make this a reality, the private sector must share the latest technological advances with the public sector.186 The recognition that research must also focus on public needs spurred a number of partnerships in the public and private sectors.187 ¶65 The Consultative Group for International Agriculture Research (“CGIAR”) is perhaps the biggest player on public seed access on the international front. The CGIAR system consists of sixteen international research centers that focus on staple crops similar to wheat, maize, and potatoes.188 CGIAR is responsible for the development of “Golden Rice,” a vitamin A enriched rice that takes genes from daffodils and micro-organisms.189 Vitamin A depletion is a critical cause of malnutrition, and Golden Rice has the potential to save many lives. North South Dichotomy as a result of TRIPS Stein, 05 (Haley, “Intellectual Property and Genetically Modified Seeds: The United States, Trade, and the Developing World”, Spring 2005, Vol. 3, No. 2,, accessed 7/24/13, JF) TRIPS and similar policies that encourage strong IP protections benefit developed nations. But their effects on developing nations are less obvious. The “North” (the developed Northern hemisphere such as the United States and European Union countries) and the “South” (the developing nations of the Southern hemisphere, including African and Asian nations) are in conflict over the issue.152 ¶54 The tropics and subtropics of the South have most of the world’s natural genetic resources, yet most patent holders of genetically modified seeds are in the North.153 Northern corporations are able to freely acquire Southern genetic resources based on the Southern hemisphere concept of a “common heritage framework” that sees genes as common property.154 The result is a “one way valve for property claims” — there is an uncompensated exchange of information between the North and South.155 Northern companies take Southern genetic resources, engineer them to create a patentable seed, and then sell the patented product back to the South. Northern companies claim “natural rights” to protect their information and products.156 ¶55 The marketing of the thaumatin plant, an indigenous plant of West Africa, illustrates this point. Thaumatin is the sweetest substance on earth and has been used for centuries by local villagers in West Africa.157 In 1993, a patent was awarded to a Korean corporation in partnership with a U.S. university.158 Billions will be collected by the patent holders from the low-calorie sweetener industry, while West Africa will not receive any of the profits.159

Misc of how the Antigua and Barbuda dispute goes down
Levick, Forbes, ’12 (Richard, “Obama’s Case against China: The U.S. Has a WTO Credibility Case”, 9/18/12,, accessed 7/25/13, JF)

The Antigua matter is especially intriguing because it also raises a number of related questions about how global business is trending in the Internet Age. In March 2003, Antigua took its case to the WTO after several months trying to engage the U.S. in meaningful negotiations. A year later, the Dispute Panel Report found that the restrictions against online gambling violated the General Agreement on Trade in Services (GATS) treaty. The ruling caused quite a stir in the gaming industry as it presaged a new era of unambiguously legalized online gambling. The American position was that our federal law simply prohibits all betting and gambling services provided by non-U.S. interests. So in 2005, the WTO heard and ruled on an appeal, finding that: (1) free trade in gambling was indeed one of the commitments we made to GATS; (2) that we had adopted ―measures‖ – including the 1961 Interstate Wire Act prohibiting the use of wire communication facilities to convey bets – that interfere with that commitment; and that (3) we could not rely on a ―moral defense,‖ i.e., that gambling is immoral and the public needs to be protected from it. The WTO explained that any moral defense in this case was obviated by, for one, the interstate online horse race betting that is today altogether legal. The WTO gave the U.S. eleven months to either allow Antigua to provide online gambling or prohibit domestic online horse betting. So much for morality! For the U.S., the WTO decision requires a re-haul of the Wire Act so that it is compatible with our GATS commitment and, in a broader sense, adjusted to the realities of the digital age in a global economy. But the initial response from the U.S. Trade Office was that it would not ask Congress to weaken restrictions. Then came the penalties. In 2007, the WTO awarded Antigua $21 million in annual damages. The tab has now accumulated to over $120 million. Throughout, the Antiguans have seemed most reasonable. This August, their government approached the WTO, seeking a compromise on the damages issue even as it assembled a team to come up with further solutions for consideration by both the U.S. and WTO. Meanwhile, the interminable American foot-dragging only encourages others in the world to disregard any pressure we might try to impose on how they should ―play by the rules.‖ There are numerous lessons in this saga for American lawmakers. First, they need to realize what their constituents think. A 2006 Zogby poll commissioned by Antigua found that over 70% of Americans do not want the government to stop online betting. Lawmakers and enforcers should also view the Wire Act in context. In light of all the complex legal issues that Internet commerce has raised in the past two decades, isn’t it reasonable that a 1961 law governing wire communications ought to be revisited under any circumstances? Bear in mind too the intent of the Wire Act, which then-Attorney General Robert Kennedy saw mainly as a weapon against organized crime. The good news is that the DOJ has already showed some flexibility; notably, it reversed its position last year by exempting lotteries from Wire Act enforcement. Perhaps the tide is slowly turning in favor of Antigua. Yet this story is not just about gaming, nor is it just about Antigua. It is also about our own legal and competitive preparedness for the digital age, and how that preparedness affects our credibility in the global marketplace. After all, it would be a shame to see American companies lose millions in intellectual property because of our insistence that a 1961 law must govern technologies that were unimagined when the law was written. Innovation and leadership are inseparable. If our policies, legal and otherwise, do not evolve in tandem with marketplace realities, we will inevitably fail our own standards at every level. There are people throughout the world who are just salivating to see that happen.

What finishing the Doha round would do

The completion of the Doha Round at the earliest possible opportunity is a must for several reasons. First, if the Round is concluded, the world can implement the tariff and subsidy reforms which are already in the draft texts and so reap the benefits. Second, completion would ensure the viability of the rules-based multilateral trading system. If multilateral solutions are delayed, national governments will resolve trade and investment problems in other ways, either through unilateral measures, or through bilateral and regional trade pacts. Also, failure of the Doha Round would cause irreparable harm to the WTO’s credibility as a negotiating forum, which could undermine its valuable dispute settlement mechanism. Third, the agreement is expected to provide a cushion against future protectionism — it could consolidate the large amount of unilateral liberalisation that has taken place since the Uruguay Round in the 1990s. Fourth, the deal would bring in large-scale reforms in agricultural trade by binding subsidy levels in the developed world and eliminating export subsidies. Fifth, estimates suggest that the conclusion of the Round could boost world trade by around US$360 billion, and the deal, if struck, could be one of the most ambitious packages of trade liberalisation ever negotiated multilaterally. But the world will not see these gains if the stalemate is not broken. The stalemate largely concerns developed countries’ reluctance to make considerable reductions in their tradedistorting agricultural subsidies, and unbalanced proposals for further industrial tariff reductions. Developing countries, on the other hand, face a number of challenges when they attempt to meet their development needs. These include ensuring decent growth rates, the reduction of high levels of poverty, job creation, manufacturing-base expansion and resource management. One way of achieving these objectives for the developing countries is to get fair access to the developed markets for their agriculture and industrial goods. Consequently, the developing countries remain reluctant to carry forward negotiations on other fronts without first achieving a breakthrough in agriculture and Non-Agricultural Market Access (NAMA) negotiations.

Bad faith solvency mechanism??
Pava 2011 (Mindy – Executive Symposium Editor for the Emory International Law Review, J.D. Candidate at Emory University School of Law, The Cuban Conundrum: Proposing an International Trademark Registry for Well-Known Foreign Marks, Emory International Law Review, p. Lexis-Nexis) Courts do not traditionally analyze instances of good faith or bad faith when ruling on trademark disputes. 306 In light of the behavior exhibited by several U.S. companies in relying on the embargo and appropriating the wellknown marks of Cuban entities, the time has come for “bad faith” to earn a more prominent place in trademark jurisprudence. The European Court of Justice recently clarified the meaning of bad faith in EU trademark law. 307 The European Court of Justice (“ECJ”) established a three-part test for bad faith in 677 a case involving Lindt, a Swiss chocolatier which secured a Community Trademark in 2000 for the shape of its gold-wrapped chocolate bunny, and Hauswirth, an Austrian competitor that had sold its own similar chocolate bunny since 1962. 308 Although Lindt originally sued Hauswirth for infringing its trademark, Hauswirth responded with a countersuit that claimed Lindt’s trademark was filed in bad faith, as the company knew about Hauswirth’s more-than-

five decades of use, and the trademark therefore should have been deemed invalid. 309 According to the ECJ’s ruling, for bad faith to exist in the filing of a trademark, the trademark applicant must know that the mark it seeks to protect already exists in the market place, the applicant must apply for the trademark with the intent of blocking its rival, and the product must have other legal protections. 310 However, the ECJ also held that, in addition to the multifactor test, an assessment of bad faith depends on the specific circumstances of each case. 311 The case has been remanded to the Austrian court of first instance, where Lindt has been asked to supply evidence showing how well known their chocolate bunnies were among relevant consumers in the marketplace in 2000, and lawyers do not expect a decision in the case before 2012. 312 Hauswirth, the Austrian chocolate bunny maker, believes the ECJ’s decision means it can prove Lindt’s bad faith by showing that the Swiss chocolatier should have known about Hauswirth’s existence when it filed a trademark application; however, it seems as though the ECJ’s ruling calls for a wider analysis of the facts of each case in determining whether a trademark can be invalidated due to bad faith. 313 If U.S. courts had adopted the ECJ’s multifactor framework for bad faith alone, without also analyzing the specifi c circumstances of each case, Bacardi and General Cigar would have violated the principle. Both companies knew that the products existed in Cuba when they filed a trademark application in the United States, but they proceeded with the hopes of establishing the rights to the products in the United States and blocking the Cuban entities from ever using their trademarks in the United Stat es. This behavior seems to reflect the core tenet of bad faith, and it also could lead to a strong likelihood of consumer confusion in having the same mark represent different products worldwide. More Cards

Obama veto of the Apple import ban destroys protection for IPR
FT—(“ Apple import veto risks undermining patent protection push” August 4, 2013 6:02 pm By James Politi in Washington and Richard Waters in Los Angeles //AY President Barack Obama’s move to overturn a looming import ban on older iPhone and iPad models – favouring Apple over Samsung in a long-running legal battle – risks undermining the US administration’s aggressive push for stricter intellectual property regimes around the world.¶ The office of the US trade representative announced the decision on Saturday, reversing a ruling by the International Trade Commission, a government agency which in June had found that Apple had infringed a Samsung technology patent.¶ Michael Froman, USTR, said the veto by the White House – the first of its kind by a president since 1987 – came after a review of “the effect on competitive conditions in the US economy and their effect on US consumers”.¶ The decision – which allows Apple to keep selling cheaper versions of the iPhone 4 and iPad 2 in the US – is striking because it comes as the US has embarked on a big push to tighten rules on patents in global trade negotiations.¶ “I think it’s likely the decision will be used as an excuse by other countries that don’t want strong patent enforcement,” said Bill Reinsch, president of the National Foreign Trade Council, a business lobby group that champions trade liberalisation. “The circumstances are different – in particular, the US has employed an extensive legal process, and Samsung can continue to pursue the matter in court – but other countries are likely to ignore the differences,” Mr Reinsch said.¶ The US is pushing for tougher intellectual property rules in regional trade talks with 11 other Pacific Rim countries known as the Trans Pacific Partnership, but also in bilateral discussions with large emerging market nations including China and India where US business has

complained about lax protection of IP rights.¶ Some of the leading US technology companies are worried that Washington’s support of Apple could hurt their own interests around the world. It would be seen in China and elsewhere as an excuse to disregard US intellectual property rules, warned Horacio Gutierrez, chief patent attorney at Microsoft, who was speaking in the run-up to this weekend’s decision.¶ Ron Cass, a former vice-chairman of the ITC, said that overturning the agency’s ruling would “come to be seen as a mistake – it undermines protection for intellectual property.”¶ The action would only have been justified if the technology was key to national security or the country’s communications infrastructure, he said. “The least justifiable time to intervene is when you have two commercial players who are direct competitors fighting over standard consumer products.”

Apple Samsung dispute and alt cause
FT 8/5—(“Samsung appeals against ITC ruling amid patent war with Apple” 8/5/13, WDKqG)//AY Last updated: August 5, 2013 6:48 pm Seoul hits at Obama’s Apple veto in patent dispute By Simon Mundy in Hong Kong and Richard Waters in San Francisco President Barack Obama’s intervention on behalf of Apple in a patent dispute with Samsung Electronics drew a sharp official rebuke from South Korea on Monday, as the Seoul-based company prepared for what could be its second major legal setback in the US in less than a week.¶ South Korea’s trade ministry on Monday criticised the US president’s weekend veto of a patent infringement ruling against Apple, expressing “concern over the possible negative impacts that this kind of decision could have on Samsung Electronics’ patent rights”.¶ Mr Obama vetoed a June ruling by the US International Trade Commission banning a range of Apple devices – which the court ruled had infringed a Samsung patent – from being imported into the US.¶ Trade experts warned that the highly unusual move, which marked the first time a president has overruled the ITC since 1987, risked drawing complaints of protectionism and would make it harder for the US to argue for stronger global protections of intellectual property rights.¶ A separate patent case involving Samsung and Apple is set to come to a head on Friday, when the ITC is expected to decide whether to ban imports of some Samsung smartphones and tablets into the US.¶ An administrative law judge has already made a ruling against Samsung, and the ITC’s commissioners usually uphold such preliminary judgments.¶ The South Korean ministry said it would closely monitor the ruling expected on Friday and the US government’s subsequent response to it.¶ “We expect the decision to be fair and reasonable,” the ministry said.¶ However, if Samsung loses the latest case, President Obama is thought unlikely to exercise a second veto, this time on behalf of the South Korean company.¶ His intervention over the weekend on behalf of Apple in the first case was made because the Samsung patent involved technology that is key to technology standards, potentially giving the South Korean company “undue leverage” in licensing negotiations, according to the reasoning for the veto.¶ The same considerations do not apply in the second case, in which Apple alleges that Samsung infringed on a design patent that covered rounded corners and other elements of smartphone design, as well as a number of technology patents.¶ Meanwhile, Samsung said it had been granted a hearing next year in a US appeals court in the case, reviving the prospects that it could eventually draw penalties against Apple for alleged patent infringement. The appeal, filed on July 18, was made on the grounds that ITC ruled that Apple had infringed only one patent, rather than all four patents, Samsung said.¶ Adnaan Ahmad, an analyst at Berenberg Bank, said investors were increasingly ignoring the long-running patent wars

between technology companies including Apple and Samsung. “The fact that margins are being questioned, growth is being questioned in the mid to long term – these are much bigger issues for the companies,” he said. Apple Can Continue Selling IPhone 4 After U.S. Reprieve By Susan Decker - Aug 4, 2013 4:49 AM ET Chris Goodney/Bloomberg The import ban applies to the iPhone 4 and iPad 2 3G models designed for networks run by AT&T, TMobile US Inc. and two regional carriers in Texas and Alaska. Samsung Electronics Co. (005930)’s patent-infringement victory over Apple Inc. (AAPL) turned hollow after President Barack Obama’s administration overturned an order barring shipments of some older iPhone models into the U.S. Important for Apple to Offer Lower-Priced Phones4:04 July 24 (Bloomberg) -- Ashok Kumar, an analyst at Maxim Group LLC, talks about the business outlook for Apple Inc. Apple reported third-quarter profit and sales that beat analysts’ estimates, spurring optimism that the maker of the iPhone and iPad can withstand an attack from low-end smartphone competition. Kumar speaks with Zeb Eckert on Bloomberg Television's "On the Move." (Source: Bloomberg) Apple Reprieve Seen to Reduce Patent Litigation3:44 Aug. 5 (Bloomberg) -- Richard Windsor, founder of and an independent technology consultant, talks about the U.S. decision to overturn an import ban on Apple Inc.'s older iPhones and iPads, allowing the company to continue selling the iPhone 4. He speaks from Dubai with Francine Lacqua on Bloomberg Television's "On the Move." (Source: Bloomberg) U.S. Trade Representative Michael Froman, designated by Obama to review the case, yesterday said a ban on versions of the iPhone 4 and iPad 2 3G was unwarranted, based on his consideration of publicpolicy issues regarding patents on fundamental technology for mobile devices. It was the first time the executive branch has overturned an import ban ordered by the U.S. International Trade Commission since 1987, when President Ronald Reagan did so in a case involving Samsung computer-memory chips. The dispute is the latest in a series of spats between the world’s two biggest smartphone vendors, underscoring their battle for dominance of a market that was worth $293.9 billion last year “Ultimately, this may lead to easing of patent laws and bring the lose-lose and meaningless patent war between Samsung and Apple to an end,” Lee Sun Tae, a Seoul-based analyst at NH Investment & Securities Co., said by phone today. Apple had been ordered to stop importing versions of the Chinese-made iPhone 4 and iPad 2 3G designed for networks run by AT&T Inc. (T), T-Mobile US Inc. (TMUS) and two regional carriers in Texas and Alaska. Cupertino, California-based Apple was counting on the Obama administration’s increased interest in patent disputes to sway the president. “We applaud the administration for standing up for innovation in this landmark case,” Apple spokeswoman Kristin Huguet said in an interview. “Samsung was wrong to abuse the patent system in this way.” Standards Patents Samsung is “disappointed” the ITC decision was overturned, Nam Ki Yung, a spokesman at the company’s headquarters in Seoul, said today in a mobile-phone text message. “The ITC’s decision

correctly recognized that Samsung has been negotiating a license in good faith and that Apple remains unwilling to take a license.” Apple sold $78.7 billion worth of iPhones last fiscal year, making up half of the company’s revenue. It doesn’t break out sales by model. It counts on older iPhone models, often given away with a two-year contract, to entice new customers. Sales of older iPhones helped Apple top analysts’ earnings projections in the fiscal third quarter. IPhone 4 models sold for other networks wouldn’t have been covered by a ban, nor would newer devices including the iPad mini and iPhone 5. The company is expected to release new iPhone and iPad models later this year. ‘Patent Hold-Up’ In a four-page ruling, Froman said that Obama assigned to him the task of evaluating the ITC’s exclusion order on the Apple devices. Froman said he based his decision on the fact that standards patents were at the core of Samsung’s case and the Obama administration has expressed concerns that “potential harms” can result if patent holders use those as leverage against competitors. The Samsung patent covers a way data are transmitted over communications networks. It’s a feature in a widely used technological standard agreed on by the mobile-device industry. Companies that work to establish standards have the advantage of knowing their inventions have to be used in all products in an industry. In turn, they pledge to license any relevant patents on fair and reasonable terms. Economic Role There’s a risk standard-patent holders could be gaining “undue leverage and engaging in ‘patent holdup,’ i.e. asserting the patent to exclude an implementer of the standard from a market to obtain a higher price for use of the patent than would have been possible before the standard was set,” Froman said. “The administration is committed to promoting innovation and economic progress, including through providing adequate and effective protection and enforcement of intellectual property rights,” Froman said. At the same time, he said standards now play an important role in the economy. “Important policy considerations arise in the enforcement of those patents incorporated into technical standards without which such standards cannot be implemented as designed, when the patent holder has made a voluntary commitment” to offer licensing on fair and reasonable terms, he said. The Obama administration in January sent the ITC proposed guidelines to consider before ordering import bans based on infringement of standards patents. Public Benefit It said that while patent owners have the right to exclude others from using their inventions, the public benefit of allowing that is limited when it comes to standards patents. The U.S. Federal Trade Commission filed a similar paper with the agency last year. The decision is “good for the consumer in the short term but if society doesn’t protect intellectual property then innovation may not continue and they eventually suffer,” Benjamin Bai, a Shanghai-based partner and head of the China Intellectual Property practice at Allen & Overy LLP, said by phone today. “Not enforcing essential patents in this way is a nice balance.” Apple and Microsoft Corp. (MSFT) have promised not to use any industry-standard patents they have to block competing products. Samsung and Google Inc. (GOOG), which owns Motorola Mobility and the Android operating system that’s the most popular platform for mobile phones, reserved the right to use them if the other side is an “unwilling licensee.” Revenue Demand

Four U.S. senators wrote to Froman on July 30, asking him to “assess the substantial public interest considerations” of using standards patents at the ITC. The senators were Democrats Amy Klobuchar of Minnesota and Barbara Boxer of California, and Republicans Mike Lee of Utah and James Risch of Idaho. Samsung demanded 2.4 percent of Apple’s iPhone and iPad revenue, which would come to about $18 per phone, Apple argued in its filing with the trade representative. It accused Samsung of being unreasonable. Samsung, which is under investigation by European regulators on allegations of patent misuse, agreed to not seek sales bans based on its standard-essential patents on that continent. It made no such promise in the U.S. and defended its position, saying Apple refused to pay on any terms. “There will be some ripple effects on the stock market,” said Florian Mueller, an intellectual property consultant based in Germering, southern Germany with clients including Microsoft and Oracle Corp. Shares of companies such as InterDigital Inc. and Qualcomm Inc., which own other so-called standardessential patents, are likely to be affected, he said. ‘Unwilling Licensee’ “By any definition, Apple is an unwilling licensee of Samsung’s declared essential patents,” Samsung wrote in the filing. Two federal judges have said Google’s Motorola unit can’t use standards patents to seek court bans of competitors’ products. One of those rulings, against Apple, is scheduled for arguments before the U.S. Court of Appeals for the Federal Circuit on Sept. 11. The other involves a Microsoft breach-of-contract complaint against Google scheduled for trial in Seattle later this month. Apple is also seeking to block imports of some Samsung phones. It filed the first salvo in April 2011, a month after the company unveiled the iPad 2 in what co-founder Steve Jobs dubbed the “Year of Copycats” after those who sought to emulate the success of the iPhone and iPad. That case resulted in a San Jose, California jury deciding in August 2012 that more than two dozen models of Samsung devices infringed Apple features like the look of the iPhone, use of a pinching gesture and double taps to zoom into images. Still Allowed Despite the verdict, the trial judge allowed Samsung to continue selling the products, saying there was no direct link between those features and the reasons people buy smartphones. “Both companies face the same issue in multiple lawsuits so while today you may be up, tomorrow you may be down,” Bai of Allen & Overy said. “Allowing intellectual-property rights to go too far harms the consumer and kills innovations.” The Apple case against Samsung is In the Matter of Electronic Digital Media Devices, 337-796, and Samsung’s case is In the Matter of Electronic Devices, Including Wireless Communication Devices, Portable Music and Data Processing Devices, and Tablet Computers, 337-794, both U.S. International Trade Commission (Washington).

Obama Administration Vetoes Import Ban on Select Apple Devices BY SEAN FITZ-GERALD3 DAYS AGO The Obama administration on Saturday slammed the door on a proposed ban of Apple products, vetoing a United States International Trade Commission decision that was initially viewed as an unexpected patent battle victory for Samsung.

U.S. Trade Representative Michael B. G. Froman executed the veto in a letter penned to the USITC's chairman, Irving A. Williamson. The disapproval notice is a direct response to the USITC's ruling, which was ordered in June and, according to All Things D, granted Samsung’s request for an import ban on older iPhones and iPads (i.e., AT&T iPhones prior to the iPhone 4S and the iPad 2 and earlier) which it found to infringe upon one of Samsung’s standards-essential patents. SEE ALSO: Report: Samsung Supplying Chips for Apple's 2015 iOS Devices The letter was posted in full on Saturday afternoon to the Office of the United States Trade Representative's website. Read the full text below:

"After extensive consultation with the agencies of the Trade Policy Staff Committee and the Trade Policy Review Group, as well as other interested agencies and persons, I have decided to disapprove the USITC's determination to issue an exclusion order and cease and desist order in their investigation," Froman wrote. He said that standards-essential patents were being used to gain undue leverage and engage in patent hold-ups. Froman did, however, note that Samsung could continue to pursue its rights through the courts. "This policy decision is not an endorsement or criticism of the Commission's decision or analysis," he wrote. "My decision to disapprove this determination does not mean that the patent holder in this case is not entitled to a remedy." The reversal, per the Wall Street Journal, marks the first time since 1987 that a presidential administration has vetoed a USITC product ban. SEE ALSO: Everything You Need to Know About Apple v. Samsung in 97 Seconds "We are disappointed that the U.S. Trade Representative has decided to set aside the exclusion order issued by the U.S. International Trade Commission (ITC)," a Samsung spokesperson told Mashable. "The ITC’s decision correctly recognized that Samsung has been negotiating in good faith and that Apple remains unwilling to take a license." Apple was reportedly locked into an ongoing appeals process following the USITC's June order. The second ruling was slated for Aug. 9. At time of writing, Apple had not responded to Mashable's request for comment. The Obama administration's veto comes at the tail end of a few years' worth of legal battles between the two tech titans. After the debut of the iPhone in 2007, Apple first locked horns with the Korean company in 2011, alleging that Samsung infringed on seven of Apple's patents with 12 Samsung products. Competing patent claims have since been thrown at both parties. Read the above document to learn more, and let us know what you think about the Obama Administration's decision in the comments below.