Across the world, people are paying increased attention to how technology transfer affects human rights as it shapes the socioeconomic landscape. Although transferring technology can narrow global disparities and boost progress, it is not exempt from ethical predicaments. This research work examines pivotal concepts, international regulations, and real-life scenarios to illuminate the intricate relationship between technology transfer and human rights abuses.
Keywords: independent inventor; invention; innovation; licensing
- To Study the Concept of Technology transfer
- To Know about the Importance and Impact created by technology transfer in India
- To Understand the relationship between Technology transfer and Human rights violations
- To know the Advantages and Disadvantages of Technology Transfer.
The research methodology in this paper is done through doctrinal or nonempirical research methodology. The researcher has done this study using articles, books, and web informationon the present topic.
The availability of technology has always been a determining element in every country’s amount of development. Its availability has largely contributed to Europe’s and America’s persistent progress during the 18th and 19th centuries’ Industrial Revolution. On the other hand, its absence has largely maintained underdevelopment throughout Africa, much of Asia, and Latin America.Therefore, efficient use of such resources in developing nations necessitates using technologies in developed countries. If third-world governments want anything, it is to have access to the ingredient that has powered progress in prosperous ones – technology. Inability to generate cutting-edge technology fit for the demands of the moment, developing countries have sought to have technology transferred to them by those who possess it through national legislation or policy, treaties, and other international agreements. In the medical and farming sectors, Transfer of Technology has proven to be a key in propelling the growth of a country. While intended to improve human lifestyles, some technologies may threaten basic subsistence needs by impairing access to food and water and endangering overall health. So, in this paper, we’ll discuss the concepts of technology, the transfer of technology, international instruments dealing with the transfer of technology, its advantages and disadvantages, and its impact on human rights.
TECHNOLOGY AND TRANSFER OF TECHNOLOGY:
According to the dictionary, technology is the “study of mechanical arts and applied sciences.” This is a rough and easy definition written for the layman. It makes no distinction between technology and technology’s products. Technology is a process, and the result is the product. If one genuinely understands technology, it is the process of giving abstractions or abstract concepts, principles, and thoughts a practical shape in the form of mechanical objects. Thus, technology is a dynamic process, while its products are static objects. Referring to mechanical arts as technology refers to technological goods. Technology and the product or consequence of technology are like twin brothers who were separated at first.Technology is intuition, and technology’s output is intelligence, know-how, and used technology.
The elements of scientific and technical knowledge do not fall from heaven. The mastery of these aspects is what leads to creativity. A person might have intuitions regarding creativity if he is well-versed in the scientific principles of the field in which he wants to develop creativity. This is accomplished by mental development in a scientific subject. The skill of creating technology or creativity is learned via study. Suppose industrialized nations that have generated technology are genuinely interested in transferring technology. In that case, they should make their learning institutions accessible to countries that lack or are interested in developing technology. “Technology transfer” happens at those places.If ideas are not fully understood in the technological process, technology cannot be grasped. As a result, students from poor nations should be allowed to train their mental skills in abstraction and formulation in institutions in wealthy countries. Many writers have so far utilized technology in the sense of tangible output rather than stereotypes, which causes uncertainty in the process of technology transfer.
Technology transfer is the process of disseminating commercial technology through a technology transfer transaction, which may or may not be covered by a legally binding contract but includes the transferor communicating relevant knowledge to the recipient. It is defined as the “flow of relevant knowledge, skill, capability, expertise, equipment, or facilities from one location to another within a specific time frame.” It may also be described as transferring know-how, technical expertise, or technology from one organization to another. It is the ‘transfer of innovations from universities and research institutes to parties capable of commercialization, or… typically, from developed to developing nations,’ according to the World Intellectual Property Organization.Technology transfer is now on the cutting edge of socioeconomic growth. The critical significance of the Transfer of Technology to developing nations has been acknowledged in various venues, including the 1992Rio Summit and the Bali and Paris Conferences, which resulted in accords to deal with climate change and related conventions such as the UNFCCC and Kyoto Protocol.
The Bali above Conference, held in 2007, included negotiations for a ‘roadmap’ to replace the Kyoto Protocol, which was set to expire in 2012. The plan called for states to conduct a series of discussions over a new treaty every two years, which resulted in the Paris Agreement. It was acknowledged that a proactive role of public policy is required to provide developing nations access to technology. Human rights issues should be highlighted in Transfer of Technology agreements so that a well-planned strategy is adopted to address the imminent technology demands and offer ways to cope with the future detrimental impacts that affect human livelihood.
PROVISIONS RELATED TO TRANSFER OF TECHNOLOGY:
During the late twentieth century, the least developed and developing nations, on the one hand, and the developed and industrialized countries, on the other, faced two distinct issues regarding intellectual property rights protection on a global scale. The former was concerned about having access to cutting-edge technology. In contrast, the developed and industrialized nations, as the architects of IP-protected goods, were worried about the weak execution of IP rights in the least developed countries. The industrialized nations successfully put the question of implementation on the agenda of the GATT’s Uruguay round. During GATT talks, developing and least-developed countries pressed the subject of technology transfer. In contrast, industrialized and developed nations pushed to enforce intellectual property rights in developing and least-developed countries.Thus, the conflict between developed and developing countries leads to the inclusion of rules relating to protecting intellectual property rights under Part III of TRIPs and clauses connected to “technology transfer.”
The provisions relating to technology transfer and Intellectual Property rights are incorporated into various WTO agreements, such as the Agreement on Trade-Related Aspects of Intellectual Property (TRIPS), the Agreement on Technical Barriers to Trade (TBT), the Agreement on Application of Sanitary and Phytosanitary Measures (SPS), the Agreement on Subsidies and Countervailing Measures (SCM), the General Agreement on Trade in Services (GATS), and the Agreement on Trade-Related Investment Measures.
The scope of this research is limited to the TRIPs agreement and the current technology transfer system based on the principles of its provisions. In its preamble, the TRIPs recognize the unique requirements of developing and least developed countries to assist them in creating a solid and credible technical basis, with one of the goals being the transfer and dissemination of technology. TRIPs also recognize the need for preventative actions to protect behaviorsimpacting technology transfer.Article 66(2) of the TRIPs agreement is one of the key provisions relating to global technology transfer. It states that the industrialized and developed nations should entice the institutions, companies, and enterprises under their jurisdiction to support international technology transfer to the least developed and developing country members. Article 66(2) is mandatory in nature, but it needs to be supported by a protocol for its proper execution; moreover, no technology is available to measure the conduct of industrialized and developed nations. Article 40 of the TRIPs agreement admits that some competitive actions may curtail licensing practices or circumstances may restrict the diffusion and transfer of technology. Still, it does not impose any obligations on member states.
After reviewing the TRIPs agreement, I discovered that the provisions about technology transfer were included due to a bargain struck between the least developed nations and the developed nations for requirements about intellectual property rights enforcement; ostensibly, the former was not a match for the latter. Unlike the intellectual property enforcement clause in TRIPs, the technology transfer provision does not specify a minimum threshold limit of duty or offer instructions for its implementation. The apparent ineffectiveness of these measures prompts the least developed and developing nations to protest and express their worry about the issue of technology transfer outside the WTO framework.
INFLUENCE OF INTELLECTUAL PROPERTY PROTECTION ON THE TRANSFER OF TECHNOLOGY:
Intellectual property laws are essential for protecting and managing research results. Countries must enhance awareness of intellectual property laws and their national and international functions to protect patentable inventions legally. Research and development innovations can be protected under the TRIPS Agreement, which covers seven forms of intellectual property: patent, copyright, trademark, industrial design, geographical indication, layout design of integrated circuits, and protection of undisclosed information or trade secrets. According to Article 27 of the TRIPS Agreement, all inventions, regardless of the field of technology, would be eligible for protection.8 Stronger protection of Intellectual property rights checks imitations while simultaneously attempting to strengthen the ownership of the innovation.The problem is how technology will be transmitted, if it is to be done at all. It is maintained that technology is sent via patents, trademarks, and so on. In an objective sense, the patent system is expansion results from property rights protection. One who analyses the evolution of the property institution discovers acknowledgment of the right to property in one’s intellectual creativity, such as ideas. Patents and trademarks represent property rights in a specific sort of intellectual property. This refers to the control of the intellectual property system through its regulations. Again, while intellectual property is protected on the same basis as tangible objects of property with economic contents, it highlights the subjective aspects inherent in the institution of property as an expression of self that is not transferable.
The preceding section describes the nature and character of technology transfer.It is not technology that is transmitted, but instead its ultimate result. It is not intended to imply that laws governing patents, trademarks, and other intellectual property are ineffective or unimportant, but their purpose is distinct from technological transfers. Consequently, the patent system does not address the issue of technical transfer; instead, it addresses the protection of intellectual property rights. It regulates the creation of intellectual labor but does not interfere with its transmission. However, it is clear that patent laws fully harness the economic, political, and social potential provided by the creation of technology products. We emphasize intellectual property’s jurisprudential nature, character, and significance in legal theory.
All regulations dealing with patents, trademarks, and so on can thus be justified not based on technological transfer but on preventing misuse of the patentee’s right. Without such protection, it will discourage him and undermine public trust in the judicial system. With these rules, the public interest in protecting the patentee’s claim, integrity, reputation, and confidence is becoming increasingly apparent.
Although we have argued that technology transfer is not feasible, a trade in technology is. Technology transfer and exchange, as if it were a commodity, are two distinct elements of technology. Developed countries charge unreasonable rates to poor countries in the guise of technology transfer since the word has gained both an emotional and prestigious tone connected with the development of civilization. As a result, criticism of industrialized countries by developing countries over the issue of technology transfer is unnecessary. Patents, trademarks, and other sorts of property rights, like all others, are monopoly rights, implying that the only option for emerging nations to compete with developed-country technologies is to develop their own countries.
ADVANTAGES AND DISADVANTAGES OF TRANSFER OF TECHNOLOGY
The flow of inventions from one entity to another involves technology transfer, also known as diffusion or spread of technological information. This process might happen across borders, between industries, or from research institutes to commercial firms. Technology transfer is a dynamic and multidimensional phenomenon with enormous potential for promoting growth and advancement. This research delves deeply into the benefits of technology transfer, illumining how it affects economic growth, innovation ecosystems, globalization, sustainable development, and social well-being.
- ECONOMIC GROWTH
One of the most significant benefits of technology transfer is its contribution to economic growth. Transferring sophisticated technology from industrialized to emerging economies hastens the pace of industrialization and economic development. This is especially visible in industries such as manufacturing, where sophisticated technology and production procedures improve efficiency and productivity.
Furthermore, technology transfer may encourage entrepreneurship by giving individuals and firms access to cutting-edge tools and information. This, in turn, promotes the development of new industries and the extension of existing ones, creating job opportunities and propelling economic progress.
- INNOVATION OF ECOSYSTEMS
Technology transfer is critical to the development of innovation ecosystems. Technologies are refined, adapted, and integrated as they travel from research and development institutes to the commercial sector. This repeated approach frequently results in the development of fresh solutions and breakthroughs, propelling technological progress. Collaboration between academia and industry, made possible by technical transfer, improves the flow of information and expertise. Businesses profit from the practical insights of industry partners, while research institutions benefit from cutting-edge research discoveries. This collaboration between academics and industry fosters innovation by supporting the creation of new goods, services, and processes. Open innovation models, in which corporations actively seek out external sources of technology and ideas, are becoming more common. Technology transfer is an essential facilitator of open innovation because it allows firms to access a worldwide pool of knowledge and experience. This collaborative strategy hastens innovation speed, benefiting both technology suppliers and users.
Technology transfer is critical in the globalization process in an interconnected society. Technology transfer across borders promotes economic and market integration by removing trade obstacles and increasing international collaboration.Developing nations frequently benefit from technology transfer by accessing modern technologies otherwise unavailable domestically. This can result in industry diversification, less reliance on a restricted range of products or services, and enhanced worldwide market competitiveness.Global firms regularly use technology transfer programs to broaden their reach and increase competitiveness. This benefits the receiving nations and allows multinational firms to capitalize on the unique strengths and skills of different locations, resulting in a win-win situation for all parties concerned.
- SUSTAINABLE DEVELOPMENT
The benefits of technology transfer extend beyond economic concerns to include environmental and social factors, which contribute to long-term growth. Through technology transfer, sustainable technologies such as renewable energy solutions and environmentally friendly industrial processes may be spread, fostering responsible and eco-friendly activities. Technological transfer has been critical in improving food security and supporting sustainable farming techniques in agriculture. Precision farming, genetically engineered crops, and efficient irrigation methods have enhanced agricultural production while reducing environmental effects. Furthermore, technological transfer can help to solve critical global issues such as climate change and resource depletion. The spread of clean and efficient technology aids countries in their transition to more sustainable and resilient systems, lowering their carbon footprint and encouraging environmental conservation.
- SOCIETAL WELL-BEING:
By increasing the quality of life and tackling crucial social challenges, technology transfer directly influences societal well-being. For example, in the healthcare industry, the transfer of medical technology and information aids in developing new diagnostic equipment, therapies, and medications. Technology transfer programs frequently provide access to life-saving medical procedures in poor countries. This contributes to bridging healthcare gaps and ensuring that advances in medical research reach underserved groups, ultimately leading to improved health outcomes. Another area where technology transfer might be beneficial is education. Transferring educational technology and approaches enhances learning experiences and makes education more accessible and practical. Online learning platforms, interactive educational tools, and digital materials help to democratize education by reaching learners from all walks of life and socioeconomic backgrounds.
- HEALTHCARE ADVANCEMENTS
Access to critical treatments and vaccinations raises serious human rights concerns, especially when they are subject to high pricing due to strong patents on discoveries such as pharmaceuticals. As a result, it has essential societal consequences since it touches on the right to health. Patents have been used to protect pharmaceutical items and methods, with proponents stating that inventors have a right to benefit from their ideas and detractors alleging that patenting restricts access to essential treatments.
The advent of illnesses like HIV/AIDS, as well as pandemics like COVID-19, needs the patenting of effective medications. However, this creates a conundrum: ‘valuing IPRs or appreciating the pricelessness of human life.’
While technology transfer can bring numerous benefits, it has challenges and potential disadvantages. Some of the drawbacks associated with the transfer of technology include:
- Dependency: The recipient country or organization may become overly reliant on the technology provider, leading to a dependency that could have economic, political, and strategic implications.
- Inequality: Technology transfer may exacerbate global inequalities, as advanced technologies are often transferred from developed to developing countries. This can widen the technology gap between nations.
- Lack of Adaptation: Sometimes, the transferred technology may need to be better suited to the local context, which could hinder its effectiveness. Failure to adapt the technology to local needs and conditions may result in suboptimal outcomes.
- Intellectual Property Concerns: Technology transfer often involves the exchange of intellectual property. The recipient may face challenges related to intellectual property rights, patent issues, and legal complexities, which can impede the smooth transfer of technology.
- Security Risks: Transferred technologies, especially in sensitive sectors such as defense or energy, may pose security risks if they fall into the wrong hands. This can lead to unintended consequences and potential threats to national security.
- Costs and Sustainability: Acquiring and implementing new technology can be expensive. The recipient may need help regarding the initial investment, ongoing maintenance costs, and the ability to sustain the technology over a long time.
- Cultural and Organizational Challenges: Technology transfer often involves changes in work processes and organizational structures. Resistance to these changes among employees and the existing corporate culture can create challenges in effectively adopting the new technology.
- Environmental Impact: The transferred technology might need to align with environmental sustainability goals. Introducing new technologies may sometimes contribute to environmental degradation or resource depletion.
- Loss of Local Innovation: The influx of foreign technologies may discourage local innovation and research and development efforts. This could lead to a situation where the recipient country becomes a consumer of technology rather than a contributor to technological advancements.
- Ethical Concerns: Ethical concerns may be associated with transferring specific technologies, especially in fields like biotechnology or artificial intelligence. Privacy, data security, and ethical use of technology must be carefully considered.
HUMAN RIGHTS INFRINGEMENT IN THE TRANSFER OF TECHNOLOGY:
The Transfer of Technology as a barrier to the protection of human rights may appear far-fetched, especially in light of the preceding observations on the actions of the Transfer of Technology to better human livelihood and protect human rights from infringement. However, a paradox arises here, as the same transferred technology aimed at improving human livelihoods may, in the same breath, pose a danger to their right to basic sustenance by negatively impacting food and water supplies and their health.
Another vulnerable right is the right to a clean and healthy environment, acknowledged in India’s Constitution and firmly approached by some international organizations. Furthermore, Intellectual Property Rights significantly influence the relationship between the Transfer of Technology and human rights. One of the most important issues centers on the relationship between strong IPR protection and the Transfer of Technology. Scholars say that while strong IPR protection may stimulate innovation and the smooth flow of technological diffusion in emerging nations, it has little influence in those countries.High IPR protection will limit poor nations’ access to innovative technology, reducing their growth possibilities.
While solid IP protection intends to preserve patent holders’ rights, the associated impact would be high fees for others wishing to access the relevant technology. This implies that individuals unable to cover the expenses may resort to counterfeit items, such as low-cost carbon-based agricultural technology and medications, which will unavoidably violate fundamental human rights such as health. As a result of Transfer of Technology agreements, nations would be forced to choose between protecting intellectual property rights and respecting internationally recognized rights. Transfer of Technology is capable of infringing on human rights and may pose a threat to human rights. In the next section, we shall concentrate on the right to health in particular.
Worldwide, international agreements and relevant national legislation recognize and protect the right to health. It is acknowledged in the UDHR and is strongly supported by the UN through its WHO agency. The rigorous patent protection of drugs remarkably impacts the right to health. Strict patents on these kinds of goods have raised many concerns about how expensive medications have grown and how difficult it has become for the impoverished to get life-saving care. Strict pharmaceutical patent protection negatively affects developing nations by preventing new medicines from entering the market, which drives up demand for the goods and, eventually, costs in such markets.Additionally, it has affected the local pharmaceutical industry’s ability to provide novel treatments for illnesses including COVID-19, pandemic flu, and HIV/AIDS. This issue is severe in developing nations since the degree of patent protection restricts how much may be copied.
This is in addition to the idea that they lack the technological know-how and innovative ability to produce such treatments domestically, which forces them to rely on the expensive drugs that are protected—something that would not be appropriate if they possessed the requisite expertise.
TRIPS has been a game-changer in this specific IPR and Transfer of Technology setting. Notably, before its establishment, nations were free to select the patent regimes that best suited their goals for technological advancement.Because industrialized nations could rely on pharmaceutical breakthroughs created in other countries, they could expand their domestic pharmaceutical industry while simultaneously supplying their citizens with inexpensive medications by excluding their products from patent protection. TRIPs had initiallyallowed pharmaceuticals produced under a compulsory license to be sold domestically in the nation of production, preventing them from being exported to other nations.TRIPs initially offered the opportunity for medications produced under a compulsory license to be sold domestically in the country of production, preventing the chance to export to other nations. LDCs found this upsetting since they needed more resources to develop new medications. This led to a TRIPS amendment allowing countries that produce generic drugs to sell all their medicines to least developed nations through compulsory licensing. To a great extent, TRIPs has standardized IPR protection rules. By establishing, for example, that drugs cannot be exempted from patent protection by WTO member nations, it enhanced the degree of intellectual property rights protection. As a result, IP-created obstacles are gradually being lifted to increase healthcare affordability and accessibility for people living in LDCs and developing nations.
CASE LAW RELATED TO THE TRANSFER OF TECHNOLOGY IN INDIA:
Even though there aren’t many famous case laws primarily concerned with technology transfer, several noteworthy court decisions have dealt with matters about intellectual property, licensing contracts, and technological advancement. These cases have influenced the legal environment around technology transfer and established significant precedents. Here are a few notable points:
- Chakrabarty v. Diamond (1980):
The question of patentability for a genetically engineered microbe was at the heart of the dispute.
Result: The Supreme Court decided to support the patentability of genetically modified organisms, finding that patents might cover living things. This ruling influenced later patent law about biotechnological innovations and encouraged genetic engineering and biotechnology progress. It also had substantial ramifications for biotechnology.
- Natco Pharma Ltd. v. Bayer Corporation (2012)
- Company Involved:
- Applicant: Natco Pharma Ltd., an Indian pharmaceutical company.
- Patent Holder: Bayer Corporation is a multinational pharmaceutical company.
- Drug in Question:
- Drug: Nexavar (sorafenib tosylate), used for treating kidney and liver cancers.
- Legal Context:
- India’s patent laws underwent significant changes with implementing the Trade-Related Aspects of Intellectual Property Rights (TRIPS) agreement, requiring member countries, including India, to provide patent protection for pharmaceutical products. However, these laws also included provisions for issuing compulsory licenses under certain conditions.
- 2008 – Bayer’s Patent Granted:
- Bayer obtained a patent for Nexavar in India.
- 2011 – Natco’s Compulsory License Application:
- Natco Pharma applied with the Controller of Patents, seeking a compulsory license to manufacture and sell a generic version of Nexavar.
- Grounds for Compulsory License:
- Natco argued that Bayer had not made Nexavar reasonably affordable and available to the public in India. It cited the high price of Nexavar and the limited number of patients who could afford the treatment.
- Compulsory License Granted (2012):
- The Controller of Patents granted Natco Pharma a compulsory license for Nexavar under Section 84 of the Indian Patents Act.
- The license allowed Natco Pharma to produce and sell a generic version of Nexavar at a significantly lower price than Bayer’s branded version.
- License Conditions:
- Natco Pharma was required to pay Bayer a royalty on the net sales of the generic version. The license was subject to certain conditions, including selling the generic drug at a significantly lower price than Bayer’s.
Key Points and Implications:
- Affordability and Access to Medicines:
- The case highlighted the issue of affordability and access to essential medicines, particularly in the context of life-saving cancer drugs. The grant of the compulsory license aimed to make Nexavar more accessible to a larger patient population in India.
- TRIPS Flexibilities:
- The case demonstrated the use of flexibilities provided by TRIPS, allowing countries to issue compulsory licenses under specific conditions, including addressing public health concerns and ensuring widespread access to medicines.
- Balance of Rights:
- The decision emphasized the need to balance the rights of patent holders and the broader public interest, especially when the patented drug is unaffordable for a significant portion of the population.
- Impact on Pharmaceutical Industry:
- The case had broader implications for the pharmaceutical industry, raising discussions about the role of patents, pricing strategies, and the responsibility of pharmaceutical companies in ensuring access to medicines.
- Subsequent Developments:
- The Natco Pharma-Bayer case paved the way for discussions on compulsory licensing in India and beyond. It also influenced subsequent matters and policy considerations related to pharmaceutical patents and access to medicines.
In conclusion, this research argues that the most practical solution to the transfer of technology and human rights conflict would be to relinquish developed nations’ rights, as long as the developing countries lack the technology and know-how in various sectors, including agriculture and pharma, independently of the developed countries.
One of these concessions would be limiting the scope of the private rights guaranteed by TRIPS to the Transfer of Technology to reduce Human rights violations. Even though TRIPS flexibilities give temporary relief, Human rights must be given priority in the health sector compared to individual Monopoly or private requests. This writer believes that although there are numerous advantages to the Transfer of Technology, some disadvantages may create a substantial negative impact on Human rights. The Dependency for poor nations increases day-by-day due to IP.
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