currently before the DSB, United States –Large Civil Aircraft. In that case the European Communities argues that: ‘The term “good” is defined as “[p]roperty or possessions.”1495 Patents and the other rights at issue are generally considered intellectual property, and are covered as such by the Agreement on Trade-Related Aspects of Intellectual Property (“TRIPS Agreement”).1496 US law explicitly states that “patents shall have the attributes of personal property.”1497 Hence, the transfer of a patent, as well as of rights to trade secrets and undisclosed data, constitutes the transfer of property – i.e., the transfer or provision of a good. 1495THE NEW SHORTER OXFORD ENGLISH DICTIONARY 1116 (4th ed. 1993). 1496TRIPS Agreement, Part II, at Section 5 (Patents) and Section 7 (Undisclosed Information). 149735 U.S.C. § 261 (1982) (emphasis added) (exhibit EC-591).’ The United States points out in response that as the law stands thus far: ‘The provision of “goods” under Article 1.1(a)(1)(iii) is the conveyance of tangible goods or ownership rights in tangible goods by the government to a private party. A patent is neither a tangible good nor an ownership right in a tangible good.’ Given the decision in US-Softwood Lumber, it is interesting that the EC chose to argue for the inclusion of intellectual property rights under the definition of ‘goods’. As the EC’s resort to the ‘The New Shorter Oxford English Dictionary’ suggests it is also difficult, in the context of US-Softwood Lumber to find other sources to support a legal interpretation of ‘goods’
Is there a benefit within the meaning of Article 1.1(b)? Howse and Eliason have argued in the case of emissions-reduction schemes, that measures ‘that simply reimburse or compensate the enterprise for taking some action that it would otherwise not take’ mean that ‘the enterprise has not acquired any competitive advantage over other enterprises, which neither take the subsidy nor have to perform these actions.’ There are two aspects to this argument: There is no benefit because the recipient company is being reimbursed for a government cost that exists only within the jurisdiction of the national government; and There is no benefit because the company gains no competitive advantage over those enterprises outside the national jurisdiction of the government who do not incur the additional cost. As a general proposition this would appear to follow. However, as we will see the proposition does not follow the logic of the enquiry required to establish the existence of benefit under Article 1.1(b) of the SCM Agreement. ‘Benefit’ under Article 1.1(b) of the SCM Agreement is determined by reference to the terms on which a ‘financial contribution’ within the meaning of Article 1.1(a)(1) is deemed to have taken place. ‘There can be no benefit to the recipient unless the ‘financial contribution’
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