Evaluating Flexibility in International Patent Law

Global patent law has raced toward harmonization over the past decades. Countries with vastly different industries, values, and levels of development now offer robust patent rights with similar contours through membership in the World Trade Organization and consequent adoption of the Agreement on Trade-Related Aspects of Intellectual Property Rights (“TRIPS”). However, patent law is still far from harmonized among countries or static within countries. Jurisdictions tailor their patent laws to accommodate differences between industries, unforeseen inefficiencies, and diverse views of the costs and benefits associated with offering patent rights to stimulate innovation. Prior scholarly work consists of either doctrinal analyses of relevant governing treaties or utilitarian analyses of the measures’ consistency with an “ideal” level of patent protection. The first perspective sidesteps normative questions by assuming the balance between harmonization and flexibility embodied in TRIPS and provides little guidance for cases in which TRIPS compliance is unclear. The second adopts assumptions that either impose foreign preferences or tacitly accept local preferences embodied in the measure. Any conclusion thus over-privileges background preferences and predetermines a normative conclusion.This Article puts forth a framework for evaluation of a tailoring measure based on whether it meets the justifications for allowing flexibility while accounting for the concerns that favor uniformity and harmonization. The proposed framework looks to the implementing institution and the adequacy of the stakeholder representation to determine the desirability, from a global perspective, of a given mechanism. Rather than offering a strict formula, I suggest that honoring diversity among regimes requires acceptance of measures that are open to criticism from consequentialists but does not preclude critical analysis of the means of development or implementation. Such an analysis allows for a productive evaluation of tailoring measures that honors differences among jurisdictions while properly accounting for the justifications underlying harmonization