Harmonization without Consensus: Critical Reflections on Drafting a Substantive Patent Law Treaty

Harmonization without Consensus: Critical Reflections on Drafting a Substantive Patent Law Treaty

Description

One can readily understand why proposals to further harmonize domestic patent laws at the international level1 have recently attracted considerable attention. As the component of intellectual property in global trade continues to grow, the costs of worldwide protection and enforcement have soared. Patent holders have accordingly begun to search for ways to acquire and maintain their exclusive rights more efficiently in an integrated world marketplace. They are also increasingly frustrated by the need to pursue multiple actions for infringement in cross-border disputes. Under the bedrock principle of territoriality, successive litigations can trigger different applications of domestic and international patent norms to the same set of facts, and lead to conflicting judgments and irreconcilable outcomes. Governments have responded to the upswing in patent applications by searching for techniques that would allow them to share examination responsibilities and costs. Important procedural advances have been embodied in the Patent Cooperation Treaty and in various regional agreements, such as the European Patent Convention. However, these instruments are seldom the product of true harmonization exercises, in part because the outcome of examinations conducted within these frameworks is typically a set of individual national patents that remain separately enforceable under local laws. In 1994, the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement), which incorporated the 1967 text of the Paris Convention for the Protection of Industrial Property, took a major step toward substantive patent law harmonization. It established a set of minimum international standards of protection for some 150 participating countries. Yet this Agreement, which did not attempt to create a uniform or deeply harmonized global patent regime, left ample room for national variations and approaches that are often collectively deemed the TRIPS flexibilities. The effort by the World Intellectual Property Organization (WIPO) to organize a thorough exploration of the possibilities for further harmonization is therefore a welcome development to much of the patent community. Under the aegis of WIPO's Standing Committee on the Law of Patents (SCP), the Draft Substantive Patent Law Treaty (SPLT) 15 represents an attempt ‘to pursue a “deep harmonization” of both the law and practice’ concerning not just the drafting, filing, and examination of patent applications, but also cornerstone requirements of patentability, such as novelty, non-obviousness, sufficiency of description, and drafting and interpretation of claims. Notably, through the efforts of the so-called Group of Friends of Development, this initiative is also being tested against the drive for a more development-friendly agenda at WIPO, with a view to ensuring consideration of the needs of all nations, whatever their technological capacities may be. Despite the promise such an effort holds, we believe that it is unwise to move to deep substantive harmonization at this time. Barely ten years have passed since the TRIPS Agreement elevated patent standards universally, challenging the technological catch-up strategies of all the developing countries, and saddling these countries with social costs that they are still struggling to absorb. As the endless controversies surrounding pharmaceutical patents make clear, higher standards of global protection—whatever their incentive effects—also generate severe and unintended distributional consequences for the developing world. A further round of harmonization will likely aggravate these and other unresolved problems without producing any offsetting user rights or concessions for these countries. On the contrary, the dynamics of TRIPS and the post-TRIPS trade agreements teaches that even a development-sensitive negotiation process is likely to produce an instrument that furthers the interests of developed countries at the expense of poorer, less powerful participants. More controversially, we contend that higher levels of harmonization will harm even the developed countries, including those that are most aggressively pressing for yet another round of multilateral intellectual property negotiations. The domestic patent laws as currently practiced were largely formulated for the inventions of the Industrial Revolution, and they still largely reflect the technological premises and concepts of the creative sectors as they were then structured. Yet, in this post-industrial information age, with knowledge-intensive inventions emerging from new kinds of research institutions, creative entities are organized non-hierarchically and along continuously-changing lines. New players, such as universities and scientific research entities, now routinely patent their output, and whole new sectors have emerged, including biotechnology and information technology. Until the operations of these and other new technical communities are better understood, there is greater need for legal experimentation at the substantive level than for harmonization. In the absence of any international governance infrastructure capable of interpreting and amending the law (rather than freezing it prematurely), the argument for delaying harmonization becomes especially compelling. Deep harmonization is particularly inappropriate until other methods for improving the efficiency of a global patent system have been fully explored. In what follows, we survey the implications of deep harmonization for developing countries in Part I, and for developed countries in Part II. In Part III, we suggest that the appropriate goal for the progressive development of world intellectual property law after TRIPS is to nurture an ‘incipient transnational system of innovation’, which can, in turn, provide the appropriate template for validating global patent norms over time. Our final conclusions are summarized at the end of the chapter.

Source Publication

Intellectual Property, Trade and Development: Strategies to Optimize Economic Development in a TRIPS-Plus Era

Source Editors/Authors

Daniel J. Gervais

Publication Date

2007

Edition

1

Harmonization without Consensus: Critical Reflections on Drafting a Substantive Patent Law Treaty

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