WIPO’s Role in Procedural and Substantive Patent Law Harmonization
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Description
As other chapters in this volume attest, in its 50 years of existence WIPO has made tremendous strides in many creative fields and has shepherded the international intellectual property regime through major political and institutional changes. However, in the realm of patent law, its efforts have been marked by a sharp dichotomy: significant progress on procedure coupled with successive stalemates on substantive issues. The story begins with the Paris Convention of 1883, which, through its obligations regarding national treatment and the right of priority, made it feasible to acquire patent protection in all Union members. A truly international scope of protection, however, only became practicable with WIPO’s establishment and management of the Patent Cooperation Treaty (PCT). Further procedural efficiencies were achieved in the Strasbourg Agreement, the Budapest Treaty, and the Patent Law Treaty (PLT). In contrast, the Paris Convention originally included little by way of substantive patent law norms, and repeated attempts to improve the situation failed. In a sense, WIPO as a specialized agency of the UN was born of the tensions between industrialized and developing countries with regard to the substantive scope of patent protection. Friction between high protectionists and low protectionists persisted through—and well past—the entry of the WTO into the sphere of patent jurisprudence. To be sure, the contrast between the pace of procedural and substantive developments is not difficult to understand. Procedural reforms lower the cost of obtaining protection and administering the patent system. Thus they benefit inventors of all nationalities and can save the resources of all member states, whether developed or developing. However, strong substantive protection raises prices, reduces output, produces deadweight loss, and can make critical inventions—such as medicines to cure deadly diseases—inaccessible. For industrialized countries, there is arguably a worthwhile trade-off between static inefficiencies of this sort and the dynamic gains available from relying on supra-competitive profits to encourage innovation. However, that is less true for countries that are far from the technological frontier. For them, the patent system can be beneficial – but only if the international regime recognizes the types of intellectual contributions that these countries can provide and if it is structured in a way that allows them to realize benefits from other advantages of patenting, such as increased technology transfer. This chapter begins with a description of the successful procedural initiatives undertaken by WIPO and its administrative predecessor, BIRPI. It moves on to consider their less successful efforts at substantive norm development. The lesson to be gleaned is that when a regime governs a single area of law, one that is closely tied to health, safety and economic growth, it is not possible to achieve substantive gains without giving due consideration to the interests of all relevant parties. We end by asking whether recent developments provide the basis for a renewed attempt to craft a better harmonized normative framework.
Source Publication
Research Handbook on the World Intellectual Property Organization: The First 50 Years and Beyond
Source Editors/Authors
Sam Ricketson
Publication Date
2020
Recommended Citation
Dreyfuss, Rochelle C. and Reichman, Jerome, "WIPO’s Role in Procedural and Substantive Patent Law Harmonization" (2020). Faculty Chapters. 1168.
https://gretchen.law.nyu.edu/fac-chapt/1168
