Using Trips to Make the Innovation Process Work
32 Pages Posted: 11 Sep 2000
As competition between firms gets fiercer, competition through innovation takes centre-stage. The establishment and maintenance of innovation-oriented economies by Members of the World Trade Organization ('WTO') is crucial for sustainable economic development in a market economy system. The Agreement on Trade-Related Aspects of Intellectual Property ('TRIPS'), annexed to the Agreement Establishing the WTO, envisages the adoption of intellectual property rights ('IPRs') in a manner conducive to innovation and in a legal environment where the abuse of these rights is prevented. Unfortunately, it is deficient in stipulating IPRs that are truly conducive to innovation and in designating appropriate methods to prevent the abuse of IPRs it envisages.
This paper comprises a critical analysis of TRIPS and proposes methods of interpreting TRIPS in a manner that would be conducive to innovation. Moreover, it presents a special interpretation scheme aimed at preventing Members of the WTO from abusing their rights under TRIPS. Furthermore, amendments to improve the mechanism envisaged by TRIPS are suggested. These proposals are based on the principle that in order for an IPRs system to be able to duly serve the requirements of the innovation process, it should be adopted in an environment where markets are monitored for the maintenance of healthy competition. As high variation in development amongst Member States and the global operations of transnational companies leaves implementation of the system open to abuse, it is contended that the functioning of this system requires the adoption of competition rules as well as the implementation and enforcement of intellectual property rights (IPRs). Otherwise, this system may be exploited in a manner that may unduly restrict competition, stifle innovation and render TRIPS provisions ineffective.
The success of TRIPS depends on the common intention and the persistent goodwill of Members to achieve global welfare goals whose impact would inevitably be felt in the activities of the WTO. It also depends on their individual resources, abilities, and determination in establishing and maintaining innovation-oriented economies. Ultimately, it is up to the authorities at the national, regional and international levels, who administer the mechanisms relating to the innovation process, to choose the path less travelled by and to take a bold step in good faith in the direction of total global welfare.
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