WIPO’s Role in Procedural and Substantive Patent Law Harmonization

Research Handbook on the World Intellectual Property Organization: The First 50 Years and Beyond (Sam Ricketson, ed., Edward Elgar Publishing), 2020

Duke Law School Public Law & Legal Theory Series No. 2020-32

20 Pages Posted: 30 Jun 2020

See all articles by Rochelle Cooper Dreyfuss

Rochelle Cooper Dreyfuss

New York University - School of Law

Jerome H. Reichman

Duke University School of Law

Date Written: May 7, 2020

Abstract

This Chapter, part of a book examining the history of the World Intellectual Property Organization (WIPO), focuses on WIPO’s activities in the patent realm. The Chapter begins with a description of the successful procedural initiatives undertaken by WIPO and its administrative predecessor, the United International Bureaux for the Protection of Intellectual Property (BIRPI), notably the development of the Patent Cooperation Treaty, the Strasbourg Agreement, the Budapest Treaty, and the Patent Law Treaty (PLT). It then considers the less successful substantive efforts of WIPO and BIRPI to raise the level of patent protection, notably through the failed attempt to revise the Paris Convention in the 1980s and, later, in negotiations over a Substantive Patent Law Treaty. We argue the lesson to be learned is that when a regime governs a single area of law (in this case, intellectual property), especially one that is closely tied to health, safety and economic growth, it is not possible to achieve substantive gains without giving due consideration to the interests of all relevant parties. We end more optimistically by asking whether recent developments provide the basis for a renewed attempt to craft a better harmonized normative framework. In addition to the effort to raise substantive standards, these include an interest in procedural mechanisms to facilitate transnational litigation involving intellectual property rights, concerns about the adequacy of defenses and limitations, and a desire to recognize new kinds of intellectual contributions, such as traditional knowledge and genetic resources.

Keywords: Patents, Paris Convention, TRIPS Agreement, Patent Law Harmonization, Patent Cooperation Treaty, Substantive Patent Law Treaty, Traditional Knowledge, Genetic Resources

JEL Classification: I18, K19, K33

Suggested Citation

Dreyfuss, Rochelle Cooper and Reichman, Jerome H., WIPO’s Role in Procedural and Substantive Patent Law Harmonization (May 7, 2020). Research Handbook on the World Intellectual Property Organization: The First 50 Years and Beyond (Sam Ricketson, ed., Edward Elgar Publishing), 2020; Duke Law School Public Law & Legal Theory Series No. 2020-32. Available at SSRN: https://ssrn.com/abstract=3595181 or http://dx.doi.org/10.2139/ssrn.3595181

Rochelle Cooper Dreyfuss (Contact Author)

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)

Jerome H. Reichman

Duke University School of Law ( email )

210 Science Drive
Box 90362
Durham, NC 27708
United States

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