TRIPS Agreement: Intellectual Property Inequality in Global Trade

Historical Foundations of the TRIPS Agreement

In considering the TRIPS agreement and its implications for the global community, it is important to evaluate the relevance of its establishment as a function of the World Trade Organization (WTO). The TRIPS agreement is the product of a history of international conventions as well as a reality produced by the trade liberalization that emerged after the end of the Cold War. To the latter development, one may attribute the opening of countless new international trade relationships, the dismantling of politically motivated trade blockades, and the vast entry of nations genuinely in need of development strategy into the international community. To the former, the existence of prior international agreements—such as the Paris Convention for the Protection of Industrial Property (1883), the Berne Convention (1886), the General Agreement on Tariffs and Trade (GATT, 1947), and the Patent Cooperation Treaty (1970)—would all contribute to the intent and legal precedents of TRIPS.

Though all of these conventions promoted the idea and the parameters of an international standard on intellectual property and patent-holding, it would not be until the establishment of the WTO that any real global mandate could exist for addressing the subject. The WTO, through its primary role as a mediator, negotiator, and monitor of international trade policies and disputes, serves by design as a gatekeeper of international trade. It offers the structural conditions and assembled authority to exercise a legitimate level of oversight over its member nations. This accounts for the appropriation of many conditions resulting from previous global conventions on intellectual property into TRIPS legislation, with enforcement under the WTO framework denoting an intellectual property structure with theretofore unprecedented regulatory relevance.

The analysis contained here focuses specifically on the legal implications of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), with particular attention directed toward understanding the ways in which its policies differ from both former internationally governing agreements on intellectual property and currently existent or recently superseded domestic policies on the subject. The core focus of this analysis concerns the relevance of patent laws, which have vast economic implications that can be illuminated through several different modes.

The 1994 adoption of the TRIPS agreement induced a collective acceptance of minimum standards for the protection of intellectual property and patent rights that, by its own declaration, drew upon precedents set by the Paris Convention and the Berne Convention. These prior agreements defined all the forms of intellectual property ultimately assessed and categorized in TRIPS, making subject to protection under a new and legally enforceable framework those properties which have typically been understood as subject to patent protection for their innovative value to societies and economies (Gervais, 1).

WTO Authority and the Structure of TRIPS

This agreement requires a great deal of ongoing judicial attention, particularly given the inherently fluctuating nature of its provisions. Its interest in bringing many nations gradually into compliance through measured adoption of standards that might promote sustainable development requires constant oversight. Interactions between developed and developing nations and their respective corporate bodies dictate that distinctions in intellectual property protections across domestic legal systems will result in global disputes.

The function of the WTO as a forum for collecting input from the international trade community on the actions of its member states may be noted in one such dispute—that between the Novartis pharmaceutical corporation and the nation of India. This case is demonstrative of the chief cause for dispute, in which a company and its related member state file complaint against another member state for refusing to acknowledge its right to patent protection. In the Novartis lawsuit against India, the company placed pressure on the developing nation to expedite its integration into a global patenting system, suggesting that the affirmations of the Doha Declaration have been met with ongoing hostility by internationalizing corporations seeking to establish newly protected markets for their exclusive patenting rights (Oxfam, 2).

In considering the text of the TRIPS agreement in light of its legal implications and recent case history, the function of the WTO comes into more vivid focus. Through its approach to intellectual property and patent protections—which its legislative and philosophical thrust endorses as a mode of sustainable global development—the WTO is designed to reduce the impact of tariffs, diplomatic trade obstructions, and basic social, legal, and political differences in the interest of creating globally viable standards across all categories of commerce. According to this exact premise, the TRIPS agreement functions to serve this interest in the categories of intellectual property and patenting.

Patent Protections, Developed Nations, and the Doha Declaration

One of the defining characteristics of the Doha Declaration was its affirmation of the right reserved for all signatories of TRIPS to distribute compulsory licenses requiring the release of patented drugs to generic domestic production. According to Section 5(b) of the addendum to the original TRIPS agreement, this freedom is accompanied by the right of the member nation to grant such compulsory licenses according to its own grounds (WTO, 1). Naturally, the patent-holding organization may appeal to the international governing body to seek an intervening application of the overall intent of the TRIPS agreement. The Doha Declaration, though it leans toward diminishing the pressure placed upon developing countries to make unnecessary or premature restrictions upon appropriately flexible patenting practices, nonetheless attempts to strike a balance aimed at maintaining an overall thrust toward greater—rather than lesser or static—restrictions on the generic production of pharmaceuticals. This is asserted in Section 3 of the Doha Declaration, which indicates that "intellectual property protection is important for the development of new medicines" (WTO, 1). This reaffirms a position found in much of the precedent-setting legislation upon which the TRIPS agreement would be based.

The TRIPS agreement also devises to improve, through patent protection, the alignment of developing nations with developed ones, as demonstrated by parallel policies of the United States. Such legislative measures as Special 301 of its Trade Act require "the US trade representative (USTR) to identify countries it considers have inadequate intellectual property rights, to warn them to improve, and if not, to apply unilateral trade sanctions" (Oxfam, 1). Thus, even as India has sought to retain some objective authority over its own national policies on drug patenting, the United States has adopted a policy whereby its own internal structures are designed to counteract such resistance. In addition to the clear economic dangers imposed by economic sanctions, national governments will often yield to the pressure of more dominant trade partners in the interest of retaining positive diplomatic and political conditions. Here, it is apparent that one of the core deficiencies in the TRIPS agreement—as with many other aspects of the WTO's governance over international trade—is its overextension beyond any legitimate oversight mandate. Much evidence suggests that the economic robustness of a trade partner is likely to play a greater role in shaping a nation's susceptibility to the overarching authority of the progressive conditions endorsed by the Doha Declaration.

In its aftermath, the continued resistance of American drug corporations to looser patenting rules in many developing nations suggests a determination by the former to establish a universal patenting standard conforming to inherently stricter western policies. One of the clearest ways in which to observe the embattled nature of the Doha Declaration's intentions is the unchanged position taken by western pharmaceutical companies on the subject of compulsory licenses—an issue that powerful lobby groups and governments have conspired to legally obstruct. As it falls upon the member nation from which a patent-seeking or patent-holding company derives itself to file grievance over a perceived failure by another member nation to honor patent protections, the consent of a member nation to entertain the complaint is required. Corporate policies, it is important to note, tend to reflect the policies of the nations from which they derive their core operations.

Now investigating the notion that the establishment of an international standardization in the governance of patenting laws inherently favors the development of more protective and restrictive policies in heretofore lax developing nations, it is understood that the TRIPS agreement is consistent with the conventions that established precedent for its conditions over more than a century of international legislation. It does more concretely pave the way for globalizing corporations to extend the benefits afforded them in the developed world into spheres with lesser economic, legal, or infrastructural stability.

In Article 3 of the agreement, the wording is suggestive of the more general tone of GATT as a whole, which was oriented toward breaking down economic barriers that afforded advantages to domestic concerns in trade policy. 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 means 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 from the nation in question, instead being required to extend 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 mature, and generally still-developing nation and economy, there is little question that the outcome of this nominally 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).

There is a clear historical pattern wherein such conventions have tended to favor developed nations by making international patent protection more restrictive. 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 the international marketing and use of intellectual property. This specifically concerned the way in which patents could be obtained, held, and used to levy sustained control over specific items of commercial value. By no coincidence, this was a policy established by fast-industrializing nations during the industrial revolution, designed to endorse innovation and the related capitalist entitlements reaped from that innovation.

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, which must be viewed as a response to the lost opportunity faced by innovating organizations failing to protect the exclusivity of their innovations in new and often loosely governed nations. Its provisions are intended by nature to extend protections for intellectual property and to restrict the production or sale of patented items, with any signing nation therefore subject to pressure for the intensification of domestic intellectual property and patenting laws.

As with future forms of such international legislation, the wording of the Paris Convention resolved that its provisions endorsed the right of companies 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 to its innovator.

This informs the right of all TRIPS signatories to be assured that such patents may be honored in a foreign setting as they would be in a domestic setting. In the subsequent Article 4, the agreement invokes an older international convention to determine the national treatment formerly directed by bilateral most-favored-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 favoritism in the awarding of patents (Gervais, 4).

Conclusion: Inherent Inequality and the Limits of Trade Liberalization

The idea that the imposition of patenting promotes innovation is evidenced to be a problematic approach to encouraging the ascendance of developing nations. There is cause to argue that many developing nations have been fast-tracked into the world system with little consideration of the immediate impact on a general population or on local job, trade, and consumer markets. We can begin to see the way in which the current arrangement under the conditions of TRIPS is theoretically intended to boost a nation's resource capabilities, but in actuality, the provisions of the Doha Declaration suggest that developing nations, even more than a decade hence, are still struggling to operate according to challenging industrial patent laws. The TRIPS agreement, far from leveling the playing field, has tended to reinforce the structural advantages enjoyed by industrialized nations and the corporations derived from them, at the ongoing expense of the populations of the developing world.

Works Cited

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