Implementing the Trips Agreement in the Patents Field

Santa Clara High Technology Law Journal, 1992

INTERNTIONAL INTELLECTUAL PROPERTY position, 5 including IP rights; compulsory licensing and nationalization provisions; 6 rules and procedures with respect to arbitration; environmental laws; export controls; 7 and even bankruptcy laws. 5. Technology transfers by developed countries to developing countries raise a number of concerns in light of the different goals of the parties to the transaction. For example, with respect to trade secrets, issues arise as to limitations that are imposed upon the duration of any trade secret protection, the ownership of improvements to or new applications of the trade secret, and the ability of the licensor to adequately assert its rights to protect the trade secret in the licensee's country. As to the actual terms of any technology transfer license, concerns arise as to limitations on the amount of any royalties, the imposition of "paid-up" rights under patents extending beyond the running royalty payment period, requirements that licenses be governed by local law and subject to local arbitration, restrictions on "grantback" clauses and other competitive practices, warranty requirements, and registration procedures as a condition to enforceability. Among those countries known to have material laws and regulations relating to the inbound transfer of technology as of the end of 1990 were the following:

Transnational Corporations

In this paper we study the determinants of the strength of patent enforcement in 43 member countries of the World Trade Organization (WTO) between 1998 and 2011, a period after the signing of the Trade-Related Aspects of Intellectual Property Rights (TRIPS) agreement. We do so by building on and expanding the seminal work of Ginarte and Park (1997) on the pre-TRIPS determinants of patent rights in the years 1960-1990. We find that in the years after TRIPS was signed, the strength of patent enforcement of a country is positively determined by two variables that signify the usage of the patent and intellectual property system, the number of patent and trademark applications. We also find that the level of research and development expenditure, the quality of human capital, and the level of development of a country have positive effects on the strength of the enforcement of patent law in practice. Intellectual property rights enforcement is one of the key investment-related policies included in the United Nations Conference on Trade and Development (UNCTAD) Investment Policy Framework for Sustainable Development. Identifying the determinants of strong patent systems will help policymakers at the national and supranational levels to design and implement effective policies that strengthen national patent systems, thereby enhancing economic benefits such as greater levels of commercialization of intangible assets and greater levels of international trade and investment.

International intellectual property regime is one of the most problematic legal regimes in international economic law. Although its establishment goes back to more than one hundred years ago, it can not be argued that it is stable and accepted by the majority of the states. The implementation of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) and the bilateral, multilateral and regional trade agreements signed in the post-TRIPS period have not been able to stabilize the ongoing problems between less-developed and developed countries on the international intellectual property protection. In fact, the discrepancies on this regime is one of the main reasons that caused the current stalemate in the Doha Round negotiations among the WTO members. As an international legal regime, intellectual property system has a distorted architecture mostly stemming from the initial bargaining problems between the parties. Although the establishment of a new regime is highly unlikely neither in the short nor medium term, existing provisions of the TRIPS can be interpreted through a more developmental way and new strategies can be adopted by less-developed countries to shape the post-TRIPS developments.

The relationship between Intellectual property rights (IPRs) and innovation in a north south framework has been a much discussed topic over the past few years. This paper adds to this research area by looking at how the trade related aspects of intellectual property rights (TRIPS) agreement implemented by the World Trade Organization (WTO) has affected the relationship between IPRs and innovation ever since its implementation in 1994. Empirical analysis, involving a panel data of 84 countries shows that the TRIPS agreement has a significant effect on the effectiveness of IPRs influence on innovation. We also obtained an interesting result exhibiting a negative impact of IPRs on innovation.

This Article considers, first, available economic, social, and cultural analyses of the impact of intellectual property protection in developing countries. Economics provides a useful set of analytical tools and are directly relevant, in particular since the successfully arranged marriage of IP and trade rules after which it became inevitable that IP rules would be measured using an economic yardstick. The Paper also considers the claim that making proper intellectual property policy is impossible or inherently unreliable because theoretical models are inadequate or valid empirical data unavailable. Against this backdrop, the Article then examines the emergence of the World Trade Organization (WTO) Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). TRIPS added a significant level of comfort for multinational corporations deciding when and where to export to new markets or expand research and development efforts. The Article also considers the Doha Ministerial Declaration of November 2001 and follow-up work on access to medicines. In the second Part, this Article discusses recent economic analyses of the impact of IP protection on bilateral trade flows and foreign direct investment (FDI). Wherever possible, lessons about the right level of intellectual protection for developing countries are drawn. Recent efforts in the World Intellectual Property Organization (WIPO) and the WTO are also discussed. In a third and final part, the Article looks at the current quest for a balanced approach and suggests ways in which such a balanced IP regime could be constructed, as part of a broad, knowledge-oriented economic development strategy.