Justifying an International Patent System: Theoretical and Pragmatic Contemplation of Patent Harmonization Based On Property Theories
Globalization is a double-edged sword for innovation. It can give innovative companies the opportunity to go beyond national boundaries, but at the same time can jeopardize their innovations without proper protection. In order to solve the problem of costs, delay, uncertainty, and unpredictability that fragmented patent system has caused, it has been argued that the harmonization of domestic patent laws is necessary. Countries have responded this by successfully concluding Patent Cooperation Treaty (PCT) and Trade Related Intellectual Property Rights (TRIPS). International communities have particularly focused on harmonizing procedural issues to share administrative works of search and examination. This work-sharing mechanism is effective in alleviating works of patent offices and reducing application costs, which can consequentially contribute to improving patent quality. However, there have been growing conflicts around substantive harmonization. Developing countries argue that the benefits of patent harmonization was unevenly distributed, and resist further development of international patent laws. Historically, patent harmonization was discussed on the foundation of utilitarian theory. As a result, it was negotiated within the trade forum where countries can discuss compensation for Kaldor-Hicks improvement. However, the compensation mechanism of trade concession has not worked properly, and the relationship between trade and intellectual property (IP) is vague and tenuous at best. Thus, there is growing belief among developing countries that the international patent system is a coerced agreement that should be resisted rather than embraced. In this situation, it is necessary to consider delinking patent harmonization from trade negotiation. Rather than depending on utilitarian calculation, it is worth adopting property theories as a normative justification for further harmonization. Among many property theories, Locke’s labor theory can deliver balanced guidance by highlighting the natural-rights aspects of property, as well as recognizing a role of government. This fundamental paradigm shift of patent harmonization from the trade theory to property theories can provide a normative guidance to confront current issues in international intellectual property laws, such as biotechnology, traditional knowledge, and biodiversity.
Law; international law; Intellectual property
Underkuffler, Laura S
Hockett, Robert C; Liivak, Oskar
Doctor of Science of Law
dissertation or thesis