Accommodating User Innovation in the International Intellectual Property Regime: A Global Administrative Law Approach

Abstract

In this symposium article, I argue that, over and above previously appreciated problems with regard to access and the traditional IP balance, the trouble with TRIPS - and with the global intellectual property law regime more generally - is that it is ill-designed to cope with changes in the innovative process itself and with the likely heterogeneity of desirable innovation approaches in different global contexts. While it is possible that current TRIPS flexibilities can be interpreted in ways that will better balance the needs of initial innovators against those of users and follow-on innovators, the very structure of the agreement is based on an assumption of mass market, seller-based innovation which may make it difficult to accommodate newer innovation paradigms. The complexity of the innovation environment, in combination with the need for both flexibility and consistency, calls for an administrative-type approach which builds in an expectation of the need for ongoing updating of global innovation policy rather than an attempt to lock in substantive standards tailored to today’s innovation environment.

To that end, I propose a re-envisioning of the World Intellectual Property Organization (WIPO) as a more broadly conceived innovation policy organization, which would serve as a center of discourse not only about how intellectual property law should be adapted to changing modes of innovation but also about how to confront new dilemmas raised by evolving innovative practices, which may involve issues beyond intellectual property law. WIPO is the most promising home for a broader focus on innovation policy in light of its expertise, its experience with the Development Agenda, and its relationship with the WTO under TRIPS. A broader mandate for WIPO could be implemented in several ways, with varying levels of administrative discretion vested in the re-imagined organization. As a first cut, WIPO might undertake to develop an Innovation Policy Agenda incorporating the concerns of innovative communities of various types, including commercial firms, user innovator communities, scientific researchers, open source proponents, and of other stakeholders, including developing and developed countries and NGOs representing users. An even more ambitious approach to WIPO involvement would be to amend TRIPS to provide a more open-ended exception provision to accommodate evolving innovation practices and to set out a more explicit role for WIPO in vetting potential exceptions. The gist of the proposal is to shift the focus of WIPO's portfolio. Rather than considering innovation policy only secondarily, as it impacts the intellectual property regime, a re-envisioned WIPO would put innovation policy front and center, regarding intellectual property as only one mechanism for innovation.

Keywords: patent, intellectual property, TRIPS