Academic journal article Santa Clara High Technology Law Journal

Revisiting the Intellectual Property Dilemma: How Did We Get to a Strong WTO Ipr Regime?

Academic journal article Santa Clara High Technology Law Journal

Revisiting the Intellectual Property Dilemma: How Did We Get to a Strong WTO Ipr Regime?

Article excerpt

INTRODUCTION I.   STRONG IPR PROTECTION: WHO BUT THE UNITED STATES CAN      LEAD IT?      A. Strong IP Protection Through Trade Policy Tools      B. Strong IP Protection Through Multilateral Regimes II.  CONFLICTS BETWEEN STRONG AND SOFT IPR PROTECTION MODES      A. Conflicts in the Field of IP-Related Retaliation under         the WTO/DSM         1. The United States         2. India         3. New Zealand      B. Conflicts in the Field of the IP-related Cross-Retaliation         under the DSM III. STRONG IPR PROTECTION: A TOUGH NUT TO CRACK CONCLUSION 


Intellectual properties ("IPs") or intellectual property rights ("IPRs") have considerable economic and legal importance in international trade. IP-intensive imports and exports, IP royalties and license fees, IP-related content downloads, and cross-board deliveries demonstrate the significance of IPRs. (1) In retrospect, there are two major policy types of IPR protection and enforcement--i.e., the strong one and the weak one. What should be mentioned is that, to some extent, the so-called "weak" protection of IPRs concerns sometimes "could not" but not "would not". In other words, weak IP protection is a systemic imperfection of IP protection and enforcement in certain members of the World Trade Organization ("WTO")--e.g., the Least Developed Countries ("LDCs") sourcing from their lower levels of economic and social development, rather than an intentional policy alternative. (2)

Without contradiction, legal culture should be an integral part of the whole ethical culture. In the patent context under the Agreement on Trade-Related Aspects of Intellectual Property Rights ("TRIPS"), established in the Uruguay Round of multilateral trade negotiations under the General Agreement on Tariffs and Trade ("GATT") (namely, the forerunner of the WTO), (3) we can read between the lines that patent protection is one of the outstanding objectives under the TRIPS. Part III, which is entitled "Enforcement of Intellectual Property Rights," sets forth the general obligations for IPR enforcement. Article 41 thereof reads:

   Members shall ensure that enforcement procedures as specified in    this Part are available under their law so as to permit effective    action against any act of infringement of intellectual property    rights covered by this Agreement, including expeditious remedies to    prevent infringements and remedies which constitute a deterrent to    further infringements. (4) 

Apparently, the "protection" is the core of the cultural ethics of the current international intellectual property system. Of these general obligations that the WTO members must assume, the first and foremost concern is to protect IPRs, whereas boosting transfer of the patent technology and follow-up innovation is not specifically mentioned in Part III of TRIPS. (5) Moreover, "economics is simply too blunt a tool" (6) to discipline the most appropriate scope and boundary of IPR protection, and the blockage being solely based on a financial stake is no better than balancing the pros and cons of all situations as far as IPR benefits are concerned. Innovation and development are no doubt the contemporary common focus of WTO members, but it must be stressed that intellectual monopoly with excessive IP protection would also retard innovation and development. (7) Determining the most suitable levels of IPR protection is a complex and comprehensive issue, rather than a single and simple economic one. (8) In fact, through the discussion in Section II.A about the developing history of the United States' IP regime, both strong and weak IPR protection regimes can be used in combination as a primary governmental guideline and exist in reciprocal dependence.

In this Article, Section I discusses how the United States has gradually corrected the mode of strong IPR protection and led global engagement on hard IPR protection issues, including through its own trade policy tools and multilateral structure--e. …

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