An Overview of the Inherently Essay

  • Length: 12 pages
  • Sources: 12
  • Subject: Business - Miscellaneous
  • Type: Essay
  • Paper: #15871366

Excerpt from Essay :

Here, it is stated that "each Member shall accord to the nationals
of other Members treatment no less favourable than that it accords to its
own nationals with regard to the protection of intellectual property."
(Gervais, 3) This is to indicate that membership in this agreement burdens
each member nation with the responsibility of granting and protecting
patents with the same level of strictness as would be afforded domestic
innovators. Domestic nations, under the conditions of this article, are
restricted from tilting competition to the advantage of patent-seekers
derived from the nation in question, instead being required to exact the
same level of legal protection to foreign patents as to domestic ones.
When this concerns the entrance of a corporation from the
industrialized sphere into a smaller, less matured and generally still
developing nation and economy, there is little question that the outcome of
this even playing field will be a considerable advantage to those seeking
to use patents awarded in developed nations to control markets in
developing ones. (Bowal et al, 96)
To this extent though, there is a clear historical pattern wherein
such conventions have tended to favour developed nations by way of making
more restrictive the laws surrounding international patent protection. The
Paris Convention for the Protection of Industrial Property would be the
first of such agreements, with the international community as represented
by the convention-signing nations proposing the first parameters for
international marketing and use of intellectual property. This would
specifically concern the way in which patents could be obtained, held and
used to levy sustained control over specific items of commercial value.
Certainly, by no coincidence, this was a policy established by fast-
industrializing nations in a time of industrial revolution designed to
endorse innovation and the related capitalist entitlements reaped from that
With its inception in 1883, the Paris Convention established many of
the first responses to unanswered questions regarding the relationship
between domestic patenting laws and the patenting laws descending from a
producer's country of origin. (WIPO, Art. 1) There is a self-evident bias
in the very creation of such a universalizing standard as that which must
certainly be viewed as a response to the lost opportunity faced by
innovating organizations failing to protect the exclusivity of these
innovations in new and often loosely governed nations. This means that its
provisions are intended by nature to extend protections for intellectual
property and to extend restrictions on the production or sale of patented
items, with any signing nations therefore subject to pressure for the
intensification of domestic intellectual property and patenting laws.
As with future forms of such international legislation, the wording
in the Paris Convention would resolve that its provisions endorsed the
right of company's to seek and maintain product patents over the right of
domestic governments to restrict such protections. (WIPO, Art. 5) The Paris
Convention explicitly states that no domestic government may be entitled to
resist the properly obtained and legally defensible patent of an
intellectual property, with the intent being to preserve the profitability
of the property in question to its innovator.
This informs the right of all signers to TRIPS to be assured that
such patents may be honored in a foreign setting as would they be in a
domestic setting. Interestingly, in the subsequent Article 4, the
agreement incites an older international convention to determine the
national treatment formerly directed by bilateral most-favoured-nation
policies, now to be guided by TRIPS. Therefore, "granted in accordance
with the provisions of the Berne Convention (1971) or the Rome Convention
authorizing that the treatment accorded be a function not of national
treatment but of the treatment accorded in another country," members of the
WTO are prohibited from applying favourtism in the awarding patents.
(Gervais, 4)
This idealization of national treatment forbearance is, naturally, a
subject often for conflict. Here, we may refer to a case with interesting
implications. The 2006 conflict between the Shell Group and Nicaragua
illustrates one way in which intellectual property may be used as
collateral in international trade disputes and how the provisions of TRIPS
may function to counteract this misappropriation. This case also
illustrates that the scales are significantly tipped in favor of patent
holders for a variety of reasons, not the least of which is a legal
perspective and approach parallel to that used by the international
community. In this case, it is apparent that the outmoded nature of
Nicaragua's intellectual property policies would have a significant impact
on the way the dispute here would unfold (NicaNet, 1)
Shell Petroleum, allegations proved, was responsible for marketing a
pesticide to corporate farms operating through South and Central America in
the 1960s and 1970s in order to capitalize on banana growing opportunities
there. This pesticide would prove biologically hazardous, resulting in the
sterilization of countless laborers in such nations as Nicaragua. In
response to a refusal on the part of the international community, and
United States courts in particular, to take on allegations on behalf of
Nicaraguan farmers that Shell was guilty of conspiring to this horrific
outcome, Nicaragua gradually developed the legal and political structures
within its own court systems to pursue justice on behalf of impacted
laborers and their families. (Vis-Dunbar, 9) In 2002, Nicaragua's own
courts reached the resolution that Shell was indeed guilty of actively
participating in behaviors which directly contributed to the sterilization
of Nicaraguan workers, selling a chemical substance known as nemagon to
banana growers such as Del Monte and Dole. (NicaNet, 1) This substance had,
in 1979, been banned from use in the United States due to awareness of its
hazardous properties, but it continued to be used in South and Central
America through the 1980s.
When the Nicaraguan court awarded a settlement of almost $500 million
to its plaintiffs, Shell resisted honoring the national treatment of its
commercial activity. In accordance with its own constitutional law,
Nicaragua responded by seizing the Shell trademarks on its soil. In
response, Shell and Shell Nicaragua filed a complaint requesting
intervention by a judicial review as a result of Nicaragua's infringement
of its intellectual property. (Vis-Dunbar, 8)
In response "the two Shell companies' claim was registered at the
International Centre for Settlement of Investment Disputes in Washington,
DC in August 2006. They invoked breaches of the Netherlands-Nicaragua
bilateral investment treaty (BIT)." (SD, 1) This invocation was deemed
accurate by the judicial review and Nicaragua was ordered to return its
holdings to corporation.
There is, however, within the context of this case, a consideration
which fails to be addressed in the impasse between Nicaraguan systemic
shortcomings and the dominant political and economic influence of such
companies as Shell, Dole and Del Monte. Namely, human rights concerned of
which the dispute are symptomatic suggests that there are matters of
divergence between developed and developing nations which are not addressed
or prevented by the TRIPS agreement. In consideration of international law
as a premise for the existence of such organizations as the WTO and TRIPS,
a definition of the human rights concerns there related must be applied to
all civil, political and commercial interactions. Taken in a sphere of
international law, geopolitical theorist Shelly Wright, in 2001, ventured
the following proposition:
The creation of international law was based on the sovereign
will of states acting much as individuals were said to do. Although
'the orthodox positivist doctrine has been explicit in the affirmation
that only states are subjects of international law' human rights now
insist that individuals must also be seen as subjects, not just
objects, of the law of nations. (Wright, 62)

The explicit connection, the author would argue, between the
assumption of rights and entitlements according to international law for
nations and between nationalist connections to the promotion of human
rights must naturally dictate an international, legal responsibility to
adhere to core principles in the preservation and extension of human
rights. Thus, as we examine a case such as that in Nicaragua, it is clear
that this is a consideration that is not due for consideration within the
same context as that which determined the outcome of the case. Human
rights, figures suggest regarding the overall standing of the World Trade
Organization, are relegated to secondary status behind profitability. The
TRIPS agreement appears to align with this bias.
The Doha Declaration would specify the rights of individual nations to
formulate the exhaustion of patent rights. This would be a response to the
total absence of any such dictation in the original TRIPS agreement, which
in Section 6 determines that no such distinction as to how and when
exhaustion of rights should take place must be provided on an international
level. (Gervais, 6) This is a distinct point of interest in a work of
legislation which otherwise works to move nations away from domestic
specificities and more into universal approaches to patent protections.…

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