On Aiding Technological Development: The Max Planck Declaration on Patent Protection

Abstract

The Declaration on Patent Protection is a welcome addition to the Max Planck Institute’s work on the flexibilities available under the TRIPS Agreement. Like the previously published Copyright Declaration, it improves on the WTO’s interpretations of the three-part open-ended exceptions provisions of the TRIPS Agreement. Furthermore, it attempts to clarify the other regulatory options that are retained under TRIPS. Here, we contend, the Declaration makes three mistakes. First, its aggressive interpretations of certain provisions undermine its credibility, making it a less useful resource than a document prepared by such notable scholars might be. Second, the options, if adopted in toto, would significantly undermine incentives to invent. Yet the Declaration does not provide guidance on which options a state that is intent on encouraging innovation should adopt. Third, the Declaration’s focus on the provisions in TRIPS that maintain sovereign regulatory authority misses the Agreement’s failure to coordinate the global innovation enterprise. We argue that two dramatic revisions to TRIPS — a change in the term of patent protection and a rule on international exhaustion — would provide countries with more freedom to experiment with the flexibilities correctly identified by the Declaration. These changes would also ensure that each country contributes a proportionate share to the costs of global innovation. And they might also lead nations to entertain the idea of abandoning some of the flexibilities in order to provide better incentives to their domestic technology sector.