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

47 Pages Posted: 8 Nov 2007 Last revised: 23 Mar 2013

See all articles by Jerome H. Reichman

Jerome H. Reichman

Duke University School of Law

Rochelle Cooper Dreyfuss

New York University - School of Law


In this Article, we contend that the World Intellectual Property Organization's proposed Substantive Patent Law Treaty (SPLT) is premature. Developing countries are struggling to adjust to the heightened standards of intellectual property protection required by the TRIPS Agreement of 1994. With TRIPS, at least, these countries obtained side payments (in the form of trade concessions) to offset the rising costs of knowledge products. A free-standing instrument, such as the SPLT, would shrink the remaining flexibilities in the TRIPS Agreement with no side payments and no concessions to the catch-up strategies of developing countries at different stages of technological advancement.

More controversially, we argue that a deep harmonization would boomerang against even its developed country promoters by creating more problems than it would solve. There is no vision of a properly functioning patent system for the developed world that commands even the appearance of a consensus. The evidence shows, instead, that the worldwide intellectual property system has entered a brave new scientific epoch, in which experts have only tentative, divergent ideas about how best to treat a daunting array of new technologies. The proposals for reconciling the needs of different sectors, such as information technology and biotechnology, pose hard, unresolved issues at a time when the costs of litigation are rising at the expense of profits from innovation. These difficulties are compounded by the tendency of universities to push patenting up stream, generating new rights to core methodologies and research tools. As new approaches to new technologies emerge in different jurisdictions, there is a need to gather empirical evidence to determine which, if any, of these still experimental solutions are preferable over time. Our argument need not foreclose other less intrusive options and measures surveyed in the Article that can reduce the costs of delaying harmonization. However, the international community should not rush to freeze legal obligations regarding the protection of intellectual property. It should wait until economists and policymakers better understand the dynamics of innovation and the role that patent rights play in promoting progress and until there are mechanisms in place to keep international obligations responsive to developments in science, technology, and the organization of the creative community.

Keywords: patents, harmonization, intellectual property, development, innovation

JEL Classification: K33, O33, O34, O38

Suggested Citation

Reichman, Jerome H. and Dreyfuss, Rochelle Cooper, Harmonization without Consensus: Critical Reflections on Drafting a Substantive Patent Law Treaty. Duke Law Journal, Vol. 57, No. 1, 2007, NYU Law and Economics Research Paper No. 07-43, Duke Law School Legal Studies Paper No. 178, Duke Science, Technology & Innovation Paper No. 22, Available at SSRN: https://ssrn.com/abstract=1028331

Jerome H. Reichman (Contact Author)

Duke University School of Law ( email )

210 Science Drive
Box 90362
Durham, NC 27708
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)

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Abstract Views
PlumX Metrics