Into BITs and Pieces: Fragmentation in International Patent Lawmaking

Abstract

Scholars have identified fragmentation in intellectual property lawmaking as a result of two opposing actions: the act of some states in commodification initiatives of signing Free Trade Agreements advocating stronger intellectual property rights while others involving counternorm initiatives by creating ‘soft law’ at international organizations. This generalized picture does not fully describe international patent lawmaking. States respond to commodification initiatives, not by promulgating counternorms, but by making countervailing changes in its local law. This can be explained by the principle of subsidiarity: the coordination in international law making while respecting state autonomy. The principle of subsidiarity holds that power or function should not be assigned to a jurisdictional level higher up in the hierarchy of governmental systems if the responsibilities it embodies can be discharged equally well or better by governments at lower levels.

Keywords: fragmentation, international patent lawmaking, free trade agreements, bilateral investment treaties, BITs, TRIPS, stasis, harmonization, patent exclusivity, counter-norm measures, regime shifting, subsidiarity

JEL Classification: O31, O34