International Patent Law: Cooperation, Harmonization and An Institutional Analysis of WIPO and the WTO

• Main Author: Stack, Alexander
• Other Authors: Trebilcock, Michael
• Format: Others
• Language: en_ca
• Published: 2008
• Subjects: patent; internatioinal; WIPO; WTO; cooperation; harmonization; law; institutional analysis; 0398
• Online Access: http://hdl.handle.net/1807/17274

This work considers international cooperation or harmonization in patent law and analyzes the two main international patent law governance institutions: the World Intellectual Property Organization (WIPO) and the World Trade Organization (WTO). A welfarist approach is adopted, proposing that international patent law should improve global welfare, subject to assumptions that the preferences of the world population are heterogeneous, that governments try to maximize the welfare of their citizens, and that international legal organization faces collective action problems. Normatively desirable patent law harmonization reconciles strong reasons for preserving diversity (including the static and dynamic satisfaction of local preferences and adapting to unpredictable change) with strong reasons for cooperation (reducing duplication in patent prosecution, and reconciling imbalanced national externalities, incentives to innovation and costs). The last reason leads to a system of national treatment and minimum standards. The risks presented by the skewed nature of invention are addressed in the international patent system through a form of regional insurance. These reasons for cooperation present two linked but separable collective action problems, supporting the existence of two international institutions to govern patent cooperation. WIPO is best positioned to address duplication in patent prosecution. The WTO is best positioned to address imbalanced national externalities, incentives and costs. However, both the WIPO and the WTO are needed to provide a comprehensive international governance system. Questions about the WTO dispute resolution system, the TRIPs Council, and the WTO’s legitimacy are addressed by advocating a trade stakeholders’ model. Whether international patent law should be seen as a multilateral obligation or a nexus of bilateral obligations is explored. Given diverse national preferences and high uncertainty surrounding the welfare effects of specific patent policies, the process of harmonization is inevitably a political process. This political aspect directly connects the topic of patent law harmonization with the institutional analysis of WIPO and the WTO. The implementation of welfare-enhancing patent law cooperation is best guarded by a process with a wide range of political inputs and transparency. Ultimately, only good international governance can deliver on the potential of the international patent system to promote international innovation, economic growth and world-wide prosperity.