Can't We All Get Along - The Case for a Workable Patent Model

Abstract

The global move towards a trade regime has been impeded by challenges of poverty and health crisis for the developing nations. Until now, the developed nations have touted the establishment of a trade regime as envisaged under TRIPS as the solution for the national challenges. This paper examines the effectiveness of TRIPS as a mechanism to move towards a trade regime. It argues that the patent policy in TRIPS cannot gear the world towards patent harmonization but can potentially adversely impact the developed nations and the post-world war trade structure. The impediments affecting the effectiveness of TRIPS as a harmonizing mechanism are identified to enable the chartering of a future strategy. This paper discusses the impact of the current WTO patent policy on the developed nation and the post-world war trade structure. The impediments affecting the effectiveness of TRIPS as a harmonizing mechanism are identified to enable the chartering of a future strategy. The paper distinguishes itself from other contributions on this subject by focusing on the impact on developed nations. The imminence for creating long-term strategies for harmonizing trade regimes is highlighted by the failure of TRIPS in pharmaceutical patents and the legitimization of the generic drug industry vide the Doha Declaration. Using India and Brazil as case studies, this paper emphasizes that future trade regimes should create enforceable contracts. The agenda should focus on empowering the third world to become trade partners rather than to merely use third world as a means to prevent international trade distortions. The flexibilities within the international intellectual property rules need to be fully explored to enable nations to use them as ingredients for economic development. The American patent regime itself embodies lessons in effective use of flexibilities to encourage industrial development. Solutions ranging from sectoral harmonization to integrating trade issues with other areas like health and environment should be fully explored. International policies furthering trade should pave a solution for developing nations to reconcile fundamental infrastructure issues. Global policies should dictate the need for sensitivity and awareness of national issues - an element lacking in TRIPS - to evolve economic changes affecting trade favorably. Taking account of and providing solution to issues that nations are bound to face in transitioning towards a global regime is the key to forge harmonization. In fulfilling international obligations, countries need to benefit nationally either economically or by solving key issues.