Rising Economies in the International Patent Regime: From Rule-breakers to Rule-changers and Rule-makers (original) (raw)
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New Political Economy, 2018
Rising economies face a crucial dilemma when establishing their position on international patent law. Should they translate their increasing economic strength into political power to further developing countries' interests in lower levels of international patent protection? Or, anticipating a rising domestic interest in stronger international patent protection, should they adopt a position that favors maximal patent protection? Drawing on multiple case studies using a most similar system design, we argue that rising economies, after having been coerced into adopting more stringent patent standards, tend to display ambivalent positions, trapped in bureaucratic politics and caught between conflicting domestic constituencies. We find that the recent proliferation of international institutions and the expansion of transnational networks have contributed to fragmentation and polarization in domestic patent politics. As a result, today's emerging economies experience a more tortuous transformative process than did yesterday's. This finding is of particular relevance for scholars studying rising powers, as well as for those working on policy diffusion, regulatory regimes, transnational networks and regime complexes.
This paper looks at the insertion of China and India in the contested and highly legalised regime of intellectual property rights (IP). In doing so it pays particular attention at two dimensions, the internal adoption of this regime and external endorsement/contestation of international IP norms. Much has been written about whether emerging countries will challenge or support the maintenance of an open rules-based multilateral trade system. In this context, the differentiated integration of these two countries in the IP regime is notable. Domestically, China despite much criticism for widespread IP infringement has followed a maximalist interpretation of TRIPS. India, on the contrary has followed other emerging countries in pursuing a more critical, minimalist understanding. These positions have also been visible at the multilateral arena. This empirical finding runs contrary to the assumption that defiance results from market power. The divergence is the more surprising given a recent explosion of patent filings in both countries. From a political economy perspective, this should translate into support for stricter rules under TRIPS. In explanaining the two countries' divertent insertion this paper looks beyond economic (market) power and domestic interests and underlines the role of ideational legacies, domestic interests and regulatory capacity. The paper thus stresses the need to look deep into domestic politics and ideational cleavages, as well as at their evolution over time, in order to better understand the international behaviour of emerging countries.
Global patent systems: Revisiting the national bias hypothesis
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This paper revisits the literature providing empirical evidence that patent offices are biased in favor of their national applicants. If true, this “national bias” would be proof of disrespect of the national treatment principle, deeply rooted in several international patent treaties. Existing investigations are, however, subject to an important limitation: they focus only on grant rates, which in all likelihood is a potentially biased indicator of stringency because it is influenced by economic forces. This paper puts forward an alternative and more robust approach to test the national bias hypothesis, consisting in a detailed analysis of how the patent examination process is carried out for domestic and international applications. Relying on a unique database of 2,400 patent families filed simultaneously in three patent offices (EPO, JPO, and USPTO), the empirical analysis finds no evidence of national bias - in any of the three patents offices - throughout the examination process...
Patent Systems as Regulatory Institutions
National patent systems and the international patent rules have evolved in ways that favour transnational corporations and other firms that claim to need patents in order to innovate. The possibility that at least some of the rule changes have been made at the expense of less powerful actors including consumers and developing countries makes it timely to ask such questions as: Why were the changes made in the first place? Why have most attempts to reverse them failed? Has the patent system always been vulnerable to regulatory capture? And is it necessarily the case that if there are winners there must always be losers? This article adopts a case study approach to argue that the search for plausible answers should begin by treating patent systems for analytical purposes as economic institutions whose evolution cannot in most cases adequately be explained in terms of the objective, well-informed and public spirited calculus of judges and policy makers. In doing so, it also suggests that the patent system itself has been fundamentally shaped from a very early stage by interest group pressure. On the other hand, such interest group pressure may not be decisive in determining outcomes, and may not even be present in all cases. Indeed, even in the apparent absence of commercial interest group pressure, institutionalism can probably explain most if not all of the reforms made. Finally, while a reform may substantially benefit one interest group and have considerable implications for the interests of many other people, patent regulation should not be perceived as a zero-sum game.
This paper focuses on the EU's and the US's relationship with Brazil, India and China (BIC) in the area of Intellectual Property Rights (IPR). The comparison of EU and US approaches yields the interplay between hierarchical (coercive) and horizontal (network-based) strategies used by both sides to advance a maximalist IP agenda vis-à-vis the BIC. We furthermore find the EU taking inspiration (i.e. "learning") from the US in the process of strengthening its external IP policy. Switching the angle to the "demand-side" of emerging countries, China comes out as the most accommodative among the BIC in terms of aligning its IP (especially patent) legislation and enforcement practices with standards promoted by the EU and the US. India and Brazil, on the other hand, have shown more signs of contestation, not only in domestic implementation but also in terms of opposing and seeking alternatives to EU-and US-induced global IP norms. Variation between the BIC is explained, inter alia, by domestic concerns related to innovation in China, the role of the (generics) pharmaceutical industry in India, and the persistence of developmentalist ideas in parts of the Brazilian public administration.
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SSRN Electronic Journal, 2016
It is widely argued that international extension of the patent system hinders innovation and growth in developing countries by restricting access to technological inputs. I reexamine the connection between patents, innovation and development by assessing the extent to which the U.S. patent regime supports R&D investment by firms in certain emerging market countries. Based on USPTO data covering all utility patents issued to U.S. and foreign inventors (a total of 6,122,217 patents issued to inventors resident in 188 countries and territories) during 1965-2015, and supplemented by additional data sources, I argue that the U.S. patent system has supported innovation in a cluster of foreign countries that have developed rapidly and dramatically since the 1980s. The increase in the proportion of foreign (and especially, East Asian) innovators in the USPTO patentee population is so large that it accounts for much of the significant increase in USPTO patent issuance that has commonly been attributed to policy changes by U.S. courts and the USPTO. Within this expanded foreign patentee population, three smaller and late-developing countries are now (together with Japan) the most intensive foreign users of the U.S. patent system on a per-capita and per-GDP basis: Israel, South Korea and Taiwan. Based on entity type, industry type and other salient characteristics of the leading "first-named" assignees of USPTO patents in Israel and Taiwan during 2000-2015, and supplemented by other evidence relating to these countries' innovation capacities and performance, I argue that these countries rely on USPTO patents to extract value from their R&D investments by supplying product or process inputs to the global value chains that connect innovation sources with commercialization sources on the pathway to target consumption markets. While prior work has presented evidence that patents sometimes promote entry into technology markets by upstream R&D firms that lack downstream production and distribution capacities, this paper extends that rationale and presents
Bilateral and regional trade deals frequently include patent provisions that go beyond the minimum requirement of the multilateral Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). They extend the scope of patentability and provide additional rights to patent holders. This paper systematically maps these “TRIPS-plus” agreements. Exploiting a new data set, 52 TRIPS-plus agreements are found to have been concluded between 1990 and 2017. The major proponents of these TRIPS-plus agreements on patents are the United States, followed by the European Union and the European Free Trade Association. Other technology-rich countries, such as Japan and Korea, have surprisingly few TRIPSplus provisions on patent protection in their trade agreements. Few South-South trade agreements include TRIPS-plus provisions, but some include TRIPS-extra provisions on genetic resources and traditional knowledge. Having a clear picture of these TRIPS-plus agreements is essential as they can have important social and economic consequences, including for the development of innovations and access to technologies.