Harmonization and its Discontents: A Case Study of TRIPS Implementation in India's Pharmaceutical Sector

Intellectual Property and Patents

Article Snapshot

Author(s)

Amy Kapczynski

Source

California Law Review, Vol. 97, No. 6, p. 1571, 2009

Summary

This article suggests TRIPS’s interpretation in developing countries is the next frontier of international patent law.

Policy Relevance

The way that India has interpreted the TRIPS agreement has provided a new approach to intellectual property in developing countries. The flexibilities in TRIPS have allowed India, particularly in pharmaceuticals, to agree to TRIPS and yet retain many of the benefits of low cost generic drugs. This approach is noteworthy because it influences how the WTO handles politics and law.

Main Points

  • Trade-Related Aspects of Intellectual Property Agreement (TRIPS) requires all member countries of the World Trade Organization (WTO) to enforce relatively high standards of intellectual property protection.
     
  • TRIPS gives developing countries a lot of flexibility at the implementation level, more than existing literature on the topic would suggest.
     
  • TRIPS cannot force total harmonization between countries because its formal standards permit countries enough latitude to take differing approaches to intellectual property.
     
  • TRIPS is still a strong harmonizing force despite resource limits, the influence of high protection jurisdictions from developed countries, and unilateral pressure of retaliation from those countries. But, these mitigating forces make it hard for developing countries, such as India, to utilize flexibilities to be as autonomous in intellectual property law as they would like.
     
  • The strategy of counter harmonization, creating a new model of patent law coordinated among developing countries, is the most effective strategy for taking advantage of the TRIPS flexibilities for a developing country.
     
  • The debate and argument regarding intellectual property is now shifting toward the interpretive elements of TRIPS and away from agreement. This fight over interpretation will be where most of the action takes place in the future of intellectual property in developing countries.
     
  • This debate over TRIPS provides another way of looking at the WTO and if it is “constitutional” in nature. The author argues that if it is, it is in the WTO’s ability to mobilize and channel political disagreement rather than to squelch or overcome it.
     

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