A Neofederalist Vision of TRIPS: The Resilience of the International Intellectual Property Regime

The George Washington International Law Review, January 1, 2013 | Go to article overview

A Neofederalist Vision of TRIPS: The Resilience of the International Intellectual Property Regime


A Neofederalist Vision of TRIPS: The Resilience of the International Intellectual Property Regime, by Graeme B. Dinwoodie & Rochelle C. Dreyfuss. Oxford University Press, 2012. Pp. 288. $85.00 (hardcover).

A Neofederalist Vision of TRIPS examines the Agreement on Trade- Related Aspects of Intellectual Property Rights (TRIPS) and its effects on intellectual property within international law. TRIPS was signed on April 15, 1994, establishing a comprehensive system for intellectual property protection within the World Trade Organiza- tion. The book's authors, Graeme B. Dinwoodie and Rochelle C. Dreyfuss, propose viewing TRIPS as a flexible neofederalist system in which each nation can comply with international law while advancing local priorities and values, rejecting the view of TRIPS as a code that imposes uniform global regulations. The theme woven throughout the book is the encouragement of regulations that sup- port an international trade framework but grant the discretion individual nations require to address local needs and priorities.

The book is divided into three main parts. Part I contains the book's first two chapters. It covers the history of TRIPS and an overview of the structure of intellectual property law. Chapter 1 recounts the history and development of international intellectual property law by briefly reviewing existing instruments, such as the Berne Convention and Paris Convention. The chapter then lays the foundation for viewing TRIPS as a neofederalist regime, rather than a comprehensive intellectual property code. The argument is based on the general history and development of the international intellectual property system, as well as a specific illustration of how each view would work in the context of the controversy over gene patents. Finally, the chapter ends with a comprehensive summary of the organization of the rest of the book.

Chapter 2 considers how TRIPS fits within the broader interna- tional intellectual property system while discussing TRIPS in con- junction with the World Intellectual Property Organization, the General Agreement on Tariffs and Trade, and the Uruguayan Round. The chapter's focus then narrows, applying TRIPS princi- ples to the debate on how differing international intellectual prop- erty regimes affect developing countries versus developed countries. The section concludes that TRIPS sets the minimum standards for protection while granting substantial autonomy for member states to comply with the agreement within the confines of their national law.

Part II, containing chapters 3-5, examines how TRIPS works in practice, focusing on differing approaches to dispute resolution. Chapter 3 introduces the Dispute Settlement Understanding, Dis- pute Settlement Body, and Appellate Body. There is then an indi- vidual discussion of the three initiatives the authors consider pertinent to the interpretive methodology of the Dispute Settle- ment Body: raising the inventive step, establishing new statutory defenses to patent infringement liability, and varying the right to relief by not automatically awarding injunctions to prevailing plain- tiffs. Each of these discussions, as well as those throughout the rest of the book, is centered on an examination and comparison of rel- evant cases and particular articles of international agreements. …

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