Document Type

Article

Comments

Presented at the 5th Inter-University Graduate Student Conference at Cornell Law School, March 2009.

Abstract

The Agreement for Trade Related Aspects of Intellectual Property Rights (TRIPS) was ratified by a majority of the countries of the world in 1994 as a precondition to membership in the World Trade Organization. Today, 153 of the countries of the world are parties to the TRIPS Agreement. The effect of the TRIPS Agreement was to create the first international substantive standards of patent harmonization, and to cause many countries to adopt intellectual property laws far stronger than they had in existence at the time. Today, the process of patent harmonization initiated with the TRIPS Agreement moves forward, through a combination of multilateral discussions for a Substantive Patent Law Treaty and bilateral treaties and negotiations incorporating stronger standards of intellectual property protection than those implemented under the TRIPS Agreement.

Whether this process of international adoption of stronger patent standards is beneficial to all countries involved is a question that has dominated the international patent debate since the TRIPS Agreement. Many developing countries have protested having to adopt stronger patent protection measures, and public health and access to medicine concerns caused by the rising prices of patented pharmaceuticals dominate the discourse around the TRIPS Agreement. All of these factors beg the question: Does a 'one size fit all' policy of international patent harmonization make sense to all countries equally?

From the experience of the United States, it appears that a strong patent system can be beneficial to the economic and industrial development of a country. However, the experiences of other countries have shown that stronger standards can even retard economic growth, instead of benefitting it. The purpose of this paper is to examine the economic and historic justifications of the worldwide shift towards stronger patent laws. In doing so, it also seeks to determine whether there is a case to be made for the alternative, a shift towards discrete levels of patent protection, where countries choose patent laws according to their economic, social and industrial needs, and not according to an externally dictated process of standardization.

The first part of my paper examines the history of patent harmonization, and current efforts to extend the process of harmonization further. The second part asks whether there is a stronger argument for each country to take its own discrete stand on its patent laws instead of staying on the harmonization bandwagon. In doing this, it examines examples from the histories of some major developing countries, as well as the history of patent law in the developing country experience. It also analyses the economic benefits of patent harmonization versus a discrete patent system. The third part of this paper compares the patent systems of India and the United States, two countries with distinct approaches to the use of intellectual property, and determines the extent to which the unique features of each benefit them.

Date of Authorship for this Version

April 2009

Keywords

International patent harmonization; Agreement on Trade-Related Aspects of Intellectual Property Rights (1994)