Diversifying Without Discriminating: Complying With the Mandates of the TRIPS Agreement

12 Pages Posted: 21 Jul 2007

See all articles by Graeme B. Dinwoodie

Graeme B. Dinwoodie

Chicago-Kent College of Law

Rochelle Cooper Dreyfuss

New York University - School of Law

Abstract

Although the technological community was once fairly united in its needs from the patent system, the recent debate over patent reform has made it clear that this is no longer the case. Rather, it has become increasingly difficult to believe that a one-size-fits-all approach to patent law can survive. In this brief contribution to a symposium tackling Diversity in Innovation Policy, we consider the ways in which intellectual property obligations, most notably the TRIPS Agreement, circumscribe the ability of national lawmakers to tailor patent protection to reflect the concerns of different industries. In particular, we propose that TRIPS art. 27, which is cast in terms of nondiscrimination, should be interpreted to permit "differential treatment." First, we argue that in other areas, treating different cases differently is not always invidious discrimination. Second, we note that many of the proposals for tailoring are not aimed at the nominal legal rights created by patent law, but rather at the economic effects of these patents, a distinction of significance in the WTO's Canada-Pharmaceutical Patents case. Finally, we suggest that member states claiming de facto discrimination should be required to demonstrate some element over and above those required to establish de iure discrimination, and that member states defending an exclusion should be permitted to rebut a showing of disparate treatment by demonstrating a legitimate purpose. While decision makers will need to evaluate the relation between the stated purpose and the means chosen, this analysis would permit members to adopt most of the tailoring initiatives discussed during the Symposium. We give weight to the normative claims of the TRIPS Agreement to facilitate and enhance free trade. But we think that industry-specific patent laws are fully consistent with the language and purpose of the TRIPS Agreement as well as the comparative advantage philosophy that undergirds the modern trade regime.

Suggested Citation

Dinwoodie, Graeme B. and Dreyfuss, Rochelle Cooper, Diversifying Without Discriminating: Complying With the Mandates of the TRIPS Agreement. Michigan Telecommunications and Technology Law Review, Vol. 13, 2007; NYU Law School, Public Law Research Paper No. 07-16. Available at SSRN: https://ssrn.com/abstract=1001264

Graeme B. Dinwoodie (Contact Author)

Chicago-Kent College of Law ( email )

565 West Adams St.
Chicago, IL 60661
United States

Rochelle Cooper Dreyfuss

New York University - School of Law ( email )

40 Washington Square South
New York, NY 10012-1099
United States
212-998-6258 (Phone)
212-995-4760 (Fax)

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