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Tuesday, 28 August 2012

Recent books

Nanotechnology Law: Best Practices, by Lorna Brazell, is a fascinating eye-opener for those of us (Kats included) who are apt to view areas of science as interchangeable commodities which are regulated by regulatory law, commercially exploited under commercial law and patented by patent law. Where a specific field of science, or its technological application, develops a character of its own, it's usually for one of two reasons: either it's because its use has a moral or ethical question-mark hanging over it (as in environmental or social impact) or because it's going to make a real difference to our daily routine. Nanotechnology doesn't cast much of a shadow, since it's more or less various other fields of science when carried out on an atomic or molecular level. But that doesn't mean that it is no importance in its own right: just as table tennis and table football are not merely shrunken versions of tennis and football respectively but require quite separate skills and mind-frames, so too does any application of nanotechnology demand something quite different from the full-size version.

Lorna's tome is actually a sort of nano-book, since it could very easily have been a great deal longer. The combination of lean and often terse prose, good organisation of subject matter and extensive deployment of acronyms however ensures that its content is manageable and accessible. The rather slender index is balanced by a generous table of contents, and it did not take this Kat long to find the bits he wanted to sample.

So what does the publisher (Wolters Kluwer Law & Business) say about it? The web-blurb has this:
"... This is the first book to offer a thorough analysis of the problems posed by nanotechnology in the context of existing legal schemes and trends, focusing on initiatives and debates in the European Union but also considering developments at the global level and in the United States, Canada, Australia, Japan and China.
Setting out how the current debate has arisen, how existing law deals with the issues arising around nanotechnology in areas such as patent rights and manufacturers’ liability, and how various international organizations are searching for some global consensus, the book addresses topics and issues including the following:
  • patentability of nanomaterial products and processes;
  • trade secrecy and nanotechnology;
  • waste and disposal issues;
  • occupational health and safety issues;
  • international initiatives – OECD, FAO, WHO, UNEP and the International Conference on Chemicals Management (ICCM);
  • intersection of nanotechnology with the most important fields of economic development;
  • the extent to which exclusive rights have been registered over early developments in nanotechnology;
  • the practical viability of pre-market toxicity investigation and postmarketing vigilance;
  • contractual and tortious approaches to real or potential liability for harm;
  • application of the precautionary principle in law and regulation; and
  • political responses to existing legislation.
Nanomaterials are already a commercial reality; the regulatory debate centres on the question of how to maximize the benefits they may offer while also limiting the risk from unforeseen hazards. This book clearly and comprehensively describes the range of issues relating to the legal framework and practicalities for commercial exploitation of nanotechnologies, and as such will prove of great value and importance to corporate counsel in many manufacturing sectors as well as to regulators and policy makers in environmental and trade law".
Curiously, neither the book nor its website give any clue as to the author's affiliation. Lorna is a partner in the London office of Bird & Bird LLP; the firm's web page for actually mentions her authorship of this book. Lorna also contributes to the same publisher's Guide to EU Pharmaceutical Regulatory Law, edited by her avian colleague Sally Shorthose (details of the 2012 edition can be accessed here).
Bibliographic data: ISBN: 9789041138262. Price $176. Hardback, xviii + 276 pages.  Rupture factor: mild. Web page here.

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Refusals to License Intellectual Property: Testing the Limits of Law and Economics is a treatise which is fascinating in quite another way.  While Nanotechnology Law: Best Practices opened this Kat's eyes to a whole new technology with which, in legal terms, he was relatively unfamiliar, this book -- authored by New Zealand professors Ian Eagles and Louise Longdin -- tackles a topic with which he is quite familiar but subjects it to a degree of critical analysis which extends beyonf both his reading and, in some instances, his imagination.  This book is one of last winter's offerings from Hart Publishing, a company which has been increasingly bold in its choice of titles.

It is difficult to review any book when one has already read a review of it, and this Kat had not merely read but edited the full, fair and perceptive review by Browne Jacobson LLP partner Mark Snelgrove (published in the July 2012 issue of the Journal of Intellectual Property Law & Practice.  Mark concluded with the observation that this book would likely be of only limited usefulness to legal practitioners, a conclusion which is quite reasonable if one considers that only a relatively small stream of refusal-to-licence disputes per se trickles into court. However the text, if academic in content, offers much food for thought for those practitioners who are advising a client with regard to likely outcomes of licensing and non-licensing options between which it may wish to choose.

The publisher's web page describes the book in the following terms:
"Economic analysis rarely appears on the judicial horizon in intellectual property litigation [and there are many of us who hope to keep it that way says Merpel, particularly when the question of Euro-defences raised in IP enforcement actions arises]. In competition cases, by contrast, economists are familiar figures in the courtroom and the language of economics is scattered throughout the judgments of even the highest courts. One might expect, therefore, that refusals to license intellectual property would generate the same fruitful symbiosis between law and economics when those refusals surface in competition proceedings.
This however, has not been how the law on this subject has developed in most jurisdictions. Courts and enforcement agencies faced with a unilateral refusal to license have instead tended to retreat into sketchily articulated black letter rules and presumptions which then have to be fenced off from the rest of competition law by economically irrelevant qualifications and distinctions based on private law categorisations of, and rationales for, individual intellectual property rights [indeed, the 'fruitful symbiosis' mentioned above is seen by some as a last resort, when all attempts to fence IP off from competition law have failed ...]. This bypassing of case-by-case analysis in favour of more traditional modes of legal reasoning is not entirely the fault of lawyers. Economists have contributed to this state of affairs by urging judges and regulators to convert empirically undernourished theories about the proper role of intellectual property in a market economy into rules of law and evidentiary presumptions intended to be binding in future cases. How this came about and what it means for the future of effective competition enforcement globally are the twin concerns of this book".
This Kat was delighted to see the important position given to essential facilities doctrine within this volume, both in its EU and US embodiments.  Given the manner in which some IP rights can serve as essential ports of entry to a market, a technology or even a research aspiration, it has always surprised him that the relationship of IP law to competition law in the area of essential facilities has been so ambivalently treated at the legislative level -- but that's our problem, not the authors'. Anyway, apart from the excellent text, there's plenty to read in the footnotes, which reflect not just the author's depth of legal scholarship but the breadth of their literature sweep. Sadly the authors have had to reproduce the verba ipsissima of Humpty Dumpty in Through the Looking Glass since it can no longer be assumed that the contract lawyers of today will be familiar with that character's position with regard to the meaning of words.

Bibliographic data: paperback, xxvii + 270 pages. Price £65. ISBN 9781841138732. Rupture factor: low. Web page here.

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