OF clusters and assumptions: Innovation as part of a full trips implementation

Fordham Law Review

Volumn 77, Issue 5, 2009, Pages 2353-2377

  Gervais, Daniel ^a  

^a VANDERBILT UNIVERSITY   (United States)

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EID: 66849122090     PISSN: 0015704X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Conference Paper

References (144)

1. Agreement on Trade-Related Aspects of Intellectual Property Rights, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1C, Legal Instruments-Results of the Uruguay Round, 33 I.L.M. 1125,1197 [hereinafter TRIPS].
2. Both the Paris Convention for the Protection of Industrial Property, Mar. 20, 1883, as last revised at the Stockholm Revision Conference, July 14, 1967, 828 U.N.T.S. 305 [hereinafter Paris Convention], and the Berne Convention for the Protection of Literary and Artistic Works, Sept. 9, 1886, as revised at Paris July 24, 1971, 1161 U.N.T.S. 3 [hereinafter Berne Convention], were first drafted, negotiated, and revised in Western Europe, except, in the case of the Paris Convention, for which the revision conference was held in Washington, D.C., in 1911.
3. See DANIELJ. GERVAIS, THETRIPSAGREEMENT: DRAFTINGHISTORYAND ANALYSIS 11-19 (3d ed. 2008). For the most part, TRIPS encapsulates the norms that the demander countries (the European Communities, Japan, and the United States) could agree on among themselves as of late 1989.
4. A court order to prevent an action that has been threatened but has not yet violated the plaintiffs rights. BLACK'S LAW DICTIONARY 800 (8th ed. 2004).
5. For example, TRIPS Article 46 provides that, [i]n order to create an effective deterrent to infringement, the judicial authorities shall have the authority to order that goods that they have found to be infringing be, without compensation of any sort, disposed of outside the channels of commerce in such a manner as to avoid any harm caused to the right holder, or, unless this would be contrary to existing constitutional requirements, destroyed. TRIPS, supra note 1, art. 46 (emphasis added). The italicized exception was introduced to reflect a rule in countries such as Brazil where destruction of otherwise useful goods is allegedly unconstitutional. Indeed, the mandatory destruction of counterfeit goods, even after infringing trademarks have been removed, is a value judgment that all may not share. Such destruction prioritizes the possibility that the goods might be rebranded or otherwise reenter the channels of commerce over the fact that they may have some use for these goods, e.g., charitable organizations.
6. See Daniel J. Gervais, TRIPS & Development, in INTELLECTUALPROPERTY, TRADE AND D EVELOPMENT16 (Daniel J. Gervais ed., 2007).
7. TRIPS distinguishes developing and least-developed nations. The latter group is based on the United Nations list. See United Nations, List of Least Developed Countries, http://www.un.org/special-rep/ohrlls/ldc/list.htm (last visited Feb. 1, 2009).
8. Council for TRIPS, Extension of the Transition Period Under Article 66.1 of the Trips Agreement for Least-Developed Country Members for Certain Obligations with Respect to Pharmaceutical Products, IP/C/25 (June 27, 2002). In another decision, the Council also decided that, "Least-developed country Members shall not be required to apply the provisions of the Agreement, other than Articles 3, 4 and 5, until 1 July 2013, or until such a date on which they cease to be a least-developed country Member, whichever date is earlier." Council for TRIPS, Extension of the Transition Period Under Article 66.1 for Least-Developed Country Members, IP/C/40 (Nov. 30, 2005).
9. World Trade Organization [WTO] Ministerial Declaration on TRIPS and Public Health, Nov. 20, 2001, WT/MIN(01)/DEC/2.
10. WTO General Council, Amendment of the TRIPS Agreement, WT/L/641 (Dec. 8, 2005).
11. See GERVAIS, supra note 3, at 65-69.
12. This is a derogation to Article 31(f) of TRIPS, which provides that products manufactured under a compulsory license must be "predominantly for the supply of the domestic market of the Member authorizing such use." TRIPS, supra note 1, art. 31 (f).
13. Welfare costs may be considered in aggregate and distributed forms. There may be aggregate welfare costs that a given society can bear, but, if those costs disproportionally impact the poor, issues of distributive justice emerge as well.
14. See, e.g., Sir Hugh Laddie, Foreword to COMM'N ON INTELLECTUALPROP. RIGHTS, INTEGRATINGINTELLECTUALPROPERTYRIGHTSAND DEVELOPMENTPOLICY(2002), available at http://www.iprcommission.org/papers/pdfs/final-report/CIPRfullfinal.pdf; INTELLECTUAL PROPERTYAND DEVELOPMENT: LESSONSFROMRECENTECONOMICR ESEARCH(Carsten Fink & Keith E. Maskus eds., 2005);
15. WORLDBANK, THEURUGUAYROUNDAND THE DEVELOPING ECONOMIES(Will Martin & L. Alan Winters eds., 1995);
16. Suzanne Scotchmer, The Political Economy of Intellectual Property Treaties, 20 J.L. ECON. & ORG. 415, 435-36 (2004).
17. According to Article 65.(2) of TRIPS, developing countries other than least-developed ones, had until January 1, 2000, to comply with most substantive provisions of the agreement. Almost all of them rushed to "paper comply" with TRIPS, often by adopting model laws. Countries in which intellectual property was mostly new had relatively few experts on hand, and their lawyers, judges, and customs authorities needed significant training. However, there was little time to ask broader questions about how intellectual property rules would affect their economies and even less time to harness emerging scholarship on innovation policies, which itself was only beginning to turn its attention to the developing world. See supra note 3 and accompanying text; infra note 40 and accompanying text.
18. See Gervais, supra note 6.
19. See id. at 4.
20. See PETERDRAHOSAND JOHNBRAITHWAITE, INFORMATIONFEUDALISM: WHO OWNS THE KNOWLEDGEECONOMY? (2003);
21. GERVAIS, supra note 3, at 11-12;
22. CHRISMAY, A GLOBALPOLITICALECONOMYOF INTELLECTUALPROPERTYRIGHTS: THENEWENCLOSURES? (2000);
23. SUSANK. SELL, PRIVATEPOWER, PUBLICLAW: THE GLOBALIZATIONOF INTELLECTUALPROPERTYRIGHTS96-120 (2003);
24. Andrea Koury Menescal, Those Behind the TRIPS Agreement: The Influence of the ICC and the AIPPI on International Property Decisions, 2 INTELL. PROP. Q. 155 (2005).
25. See Gervais, supra note 6, at 13.
26. Ruth K. Okediji, The Limits of Development Struggles at the Intersection of Intellectual Property and Human Rights, in INTELLECTUALPROPERTY, TRADEAND DEVELOPMENT, supra note 6, at 375.
27. General Agreement on Trade in Services, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex IB, Legal Instruments-Results of the Uruguay Round, 1869 U.N.T.S. 183, 33 I.L.M. 1167 (1994).
28. WTO Agreement on Government Procurement, Apr. 15, 1994, available at http://www.wto.org/english/docs-e/legal-e/gpr-94001-e.htm.
29. See, e.g., F. M. Scherer, Global Welfare in Pharmaceutical Patenting, 27 WORLD ECON. 1127, 112742(2004).
30. J. Michael Finger & Philip Schuler, Implementation of Uruguay Round Commitments: The Development Challenge, 23 WORLDE CON. 511, 511-25 (2000).
31. Put differently, TRIPS was perceived by a number of developing nations as a lesser evil than isolation and loss of Most Favored Nation (MFN) status. See Bernard Hoekman, Services and Intellectual Property Rights, in THENEWGATT: IMPLICATIONSFOR THE UNITEDSTATES113 (S. M. Collins & Barry P. Bosworth eds., 1994).
32. JAGDISHN. BHAGWATI, IN DEFENCEOF GLOBALIZATION182-85 (2004). Dr. Jagdish Bhagwati's criticism seems to insist mostly on the fact that TRIPS is not proper subject matter for the WTO.
33. 3, 59 STAN. L. REV. 257, 283-85, 312-31 (2006). Madhavi Sunder notes, "[intellectual property originalists looking backwards miss the revolutionary social and technological changes afoot in this century. We are witnessing historic changes in our traditional notions of who the creators and innovators of culture are, or ought to be." Id. at 331.
34. See generally J. MICHAELFINGER& PHILIPSCHULER, POORPEOPLE'S KNOWLEDGE: PROMOTINGINTELLECTUALPROPERTYIN DEVELOPINGCOUNTRIES(2004). On possible solutions within the TRIPS framework, see Daniel Gervais, Traditional Knowledge & Intellectual Property: A TRIPS-Compatible Approach, 2005 MICH. ST. L. REV. 137, 166.
35. For a detailed discussion of how Egypt's pharmaceutical industry and access to medicines was done more harm than good by TRIPS, see BASMAI. ABDELGAFAR, THE ILLUSIVETRADE-OFF: INTELLECTUALPROPERTYRIGHTS, INNOVATIONSSYSTEMSAND EGYPT'S PHARMACEUTICALI NDUSTRY15-23 (2006) (discussing the emergence of TRIPS).
36. Convention on Biological Diversity, http://www.cbd.int/convention/ convention.shtml (last visited Mar. 15, 2009).
37. Recent measures announced by the governments of Thailand and Brazil tend to demonstrate that the issue is far from resolved. For example, Brazil granted a compulsory licence to import a cheaper generic version of a patented drug to treat AIDS. See Brazil Breaks HIV-Drug Patent After Failed Negotiations with Pharmaceutical Giant Merck, NOTISUR-S. AM. POL. & ECON. AFF., June 8, 2007, available athttp://www. accessmylibrary.com/coms2/summary-0286-31364472JTM.
38. World Intellectual Property Organization [WIPO], Diplomatic Conference on Certain Copyright and Neighboring Rights, Dec. 20, 1996, 35 I.L.M. 65;
39. WIPO, Performances and Phonograms Treaty, Dec. 20, 1996, 36 I.L.M. 65.
40. WIPO General Assembly, Proposal by Argentina and Brazil for the Establishment of a Development Agenda for WIPO, WO/GA/31/11 (Aug. 27, 2004);
41. see also WIPO General Assembly, Report on the Thirty-First (15th Extraordinary) Session, 33-37, WO/GA/31/15 (Oct. 5, 2004). This proposal was joined by twelve other member states (Bolivia, Cuba, Dominican Republic, Ecuador, Egypt, Iran, Kenya, Peru, Sierra Leone, South Africa, Tanzania, and Venezuela).
42. See WIPO, Report of the First Session of the Provisional Committee on Proposals Related to a WIPO Development Agenda, Provision 2 & Annex, PCD A/1/6 (Feb. 20-24, 2006).
43. This essay went to press in March of 2009.
44. See Office of the U.S. Trade Representative, Bilateral Trade Agreements, http://www.ustr.gov/Trade-Agreements/Bilateral/Section-Index.html (last visited Jan. 28, 2009);
45. Peter K. Yu, The International Enclosure Movement, 82 IND. L.J. 827, 867-68 (2007).
46. See SISULE F. MUSUNGU& CECILIAOH, THEUSEOF FLEXIBILITIESIN TRIPS BY DEVELOPINGCOUNTRIES: CANTHEYPROMOTEACCESSTO MEDICINES? 8 (2005), available athttp://www.who.int/intellectualproperty/studies/TRIPSFLEXI.pdf.
47. See, e.g., Martin Kohr, The WTO, the Post Doha Agenda and the Future of the Trade System: A Development Perspective, THIRDWORLDNETWORK(2002), http://www.twnside.org.sg/title/mkadb. htm. However, most strong critiques of the agreement, generally on public health grounds, recognize that it is here to stay. See, e.g.,Junaid Subhan, Scrutinized: The TRIPS Agreement and Public Health, MCGILL J. MED. 152, 152-59, available at http://www.pubmedcentral.nih.gov/articlerender.fcgi? artid=2323529#fn8-mjm0902pl52. As Junaid Subhan notes, Criticism of the TRIPS agreement arises on a number of levels. There are those who criticize the implementation of its provisions in sovereign countries, there others that criticize the provisions of the TRIPS agreement and there are still others who criticize its very existence. The subsequent critique of the TRIPS agreement will be made through the lens of the following neutral principles in order to make the recommendations as relevant and applicable to the current situation as possible: Access to essential medications is a fundamental human right. Intellectual property legislation has been a driving force behind innovation for commercial purposes. The world's primary source of novel and generic drugs has been and will continue to be the commercial pharmaceutical industry. The TRIPS agreement will not be repealed in the near future and will continue to shape international intellectual property law. Id. (emphasis added) (footnotes omitted).
48. In other words, as the three-step test filter for national exceptions to copyright, design, and patent rights-and to a certain extent, trademark rights-makes plain, what matters most is not whether an infringement has taken place but whether actual or potential revenue was lost as a result. The protection of rights is therefore, indirectly at least, tied to a new harm to the market test.
49. See Daniel J. Gervais, Intellectual Property and Human Rights: Learning to Live Together, in INTELLECTUALPROPERTYAND HUMANRIGHTS3 (Paul L. L. Torremans ed., 2d ed. 2008).
50. See GERVAIS, supra note 3, at 142-4.
51. See Daniel J. Gervais, Epilogue: A TRIPS Implementation Toolbox, inINTELLECTUALPROPERTY, TRADEAND DEVELOPMENT, supra note 6, at 527-5.
52. This is a point made as far back as 1957 by Robert M. Solow. In his 1987 Nobel Prize Lecture, he noted,
53. [T]he main result of that 1957 exercise was startling. Gross output per hour of work in the U.S. economy doubled between 1909 and 1949; and some seven-eighths of that increase could be attributed to 'technical change in the broadest sense' and only the remaining eight could be attributed to conventional increase in capital intensity.
54. Robert M. Solow, 1987 Nobel Prize Lecture: Growth Theory and After (Dec. 8, 1987), available at http://nobelprize.org/nobeLprizes/economics/ laureates/1987/solow-lecrure.html (referencing Robert Solow, Technical Change and the Aggregate Production Function, 39 REV. ECON. & STATS. 312, 312-20 (1957)).
55. See generally BENGT-ÅKE LUNDVALLET AL., NATIONAL SYSTEMS OF PRODUCTION, INNOVATIONAND COMPETENCEBUILDING(2002).
56. See generally id.
57. See generally M. Istvan & M. Feher, The Humboldtian Idea of a University: The Bond Between Philosophy and the Humanities in the Making of the Modern University, 28 NEOHELICON33 (2001). For a more policy-oriented take, see ORG. FOR ECON. COOPERATIONAND DEV., EDUCATIONPOLICYANALYSIS(2004) [hereinafter OECD REFORM]. Interestingly, Alexander von Humboldt also wrestled with creativity and "came up with the concept of internalized form-fundamentally the concept of free creation within a system of rule-in an effort to come to grips with some of the same difficulties and problems that Cartesians faced in their terms." NOAMCHOMSKY& MICHELFOUCAULT, THECHOMSKY-FOUCAULTDEBATEON HUMANNATURE12 (The New Press 2006) (1971) (quoting Noam Chomsky). René Descartes attributed to the "mind" a range of phenomena, including creativity, that he could not explain according to the mechanical or physical principle. See René Descartes, Discourse on the Method, in SELECTEDPHILOSOPHICALWRITINGS44 (John Cottingham et al. trans., 1988).
58. Elias G. Carayannis & David F. J. Campbell, "Mode 3 ": Meaning and Implications from a Knowledge Systems Perspective, in KNOWLEDGECREATION, DIFFUSION, AND USE IN INNOVATIONNETWORKSAND KNOWLEDGECLUSTERS: A COMPARATIVESYSTEMSAPPROACH ACROSSTHE UNITEDSTATUES, EUROPE, AND ASIA1,11 (Elias G. Carayannis & David F. J. Campbell eds., 2006) [hereinafter KNOWLEDGECREATION].
59. See OECD REPORT, supra note 45, at 89-115.
60. Climate change, energy production, and medical research (on ethical and other levels) come to mind as current examples.
61. This debate is going well past the boundaries of this essay. If education is the intellectual foundation for much innovation, it is not a true sine qua non, because innovators without formal education are common. Others have emphasized that education might in fact limit creativity by imposing strict intellectual self-discipline. As Jean Piaget noted, the "principle goal of education is to create men who are capable of doing new things, not simply of repeating what other generations have done-men who are creative, inventive and discoverers." JEROME S. ARCARO, QUALITYIN EDUCATION: AN IMPLEMENTATIONHANDBOOK 51 (2006) (quoting Jean Piaget).
62. See GERVAIS, supra note 6, at 52-59, 545-6.
63. Clusters are defined here as "concentrations of interconnected companies, specialized suppliers, service providers, firms in related industries, and associated institutions." Max von Zedtwitz & Philip Hermann, Innovation in Clusters and the Liability of Foreignness of International R&D, in KNOWLEDGECREATION, supra note 46.
64. See DANIELROUACH& JEFFSAPERSTEIN, CREATINGREGIONALWEALTHIN THE INNOVATIONECONOMY: MODELS, PERSPECTIVES, AND BESTPRACTICES331-42 (2002).
65. See EVERETTM. ROGERS, DIFFUSIONOF INNOVATIONS333 (5th ed. 2003).
66. The Bayh-Dole Act, Pub. L. No. 96-517, 94 Stat. 3015, 3015-28 (1980) (codified as amended at 35 U.S.C. §§ 200-212 (2000 & Supp. II 2002);
67. see Gary Pulsinelli, Share and Share Alike: Increasing Access to Government-Funded Inventions Under the Bayh-Dole Act, 7 MINN. J. L. SCI. & TECH. 393 (2006). Gary Pulsinelli notes that prior to the Bayh-Dole Act, "[t]he general aim of the agencies was to achieve widespread dissemination of the results obtained in laboratories operating with federal money and to encourage wide development and usage through dedication to the public domain and nonexclusive licenses." Pulsinelli, supra, at 401. He then notes that "[t]he Act encourages small businesses and nonprofit funding recipients to patent the results of government-sponsored research by allowing them to retain title to the inventions if they diligently file patent applications and promote commercial development of the inventions." Id. at 403.
68. See generally Henry Etzkowitz & Loet Leydesdorff, The Dynamics of Innovation: From National Systems and "Mode 2" to a Triple Helix of University-Industry-Government Relations, 29 RES. POL'Y 109 (2000).
69. See David F. J. Campbell, The University/Business Research Networks in Science and Technology: Knowledge Production Trends in the United States, European Union, and Japan, in KNOWLEDGECREATION, supra note 46, at 67, 73.
70. Zedtwitz & Heimann, supra note 51, at 102.
71. See id.
72. ANDREWHARGADON, HOW B REAKTHROUGHSHAPPEN: THE SURPRISINGTRUTH ABOUTHOW COMPANIESI NNOVATE6 (2003). Another commentator suggests that "a network-based idea management tool can be understood as a mechanism for transforming tacit, intangible human capital into explicit, tangible structural capital. Intellectual capital in explicit form can be managed, manipulated, and exposed to and combined with other tangible and intangible resources and objects-people, funds and other ideas, for example. This is the intended function of idea management." John C. Stratton, Idea Work Style-A Hypothetical Web-Based Approach to Monitoring the Innovative Health of Organizations, inWss 2003: WI/IAT 2003 WORKSHOPON APPLICATIONS, PRODUCTSAND SERVICESOF WEB-BASEDSUPPORTSYSTEMS69, 70 (J. T. Yao & Pawan J. Lingras eds., 2003).
73. See Stefan Kuhlmann, Future Governance of Innovation Policy in Europe-Three Scenarios, 30 RES. POL'Y 953, 954 (2001).
74. LUNDVALL ET AL., supra note 43, at 221-28;
75. see also Helga Nowotny et al., Rethinking Science, in KNOWLEDGECREATION, supra note 46, at 39, 43 ("Not only has knowledge, in the form of world brands and massive (and instantaneous) data flows, become the key resource in the global economy, but scientific knowledge, more narrowly defined, has also been both more highly integrated than ever before and also more widely distributed.").
76. See FREEDOMHOUSE, FREEDOMIN THE WORLD2004: THE ANNUALSURVEYOF POLITICALRIGHTSAND CIVILLIBERTIES(2004), available athttp://www.freedomhouse.org/template.cftn?page=l 30&year=2004 ("[A]mong upper income countries that derive the vast proportion of their wealth from enterprise and knowledge, 38 are Free and only 3 are Partly Free. Societies that are most successful in producing wealth are almost uniformly Free.").
77. Nowotny et al., supra note 61, at 41-42.
78. One could engage in a post-Westphalian analysis of the regulation of innovation and technology, and how a country can take strategic advantage of this tectonic shift, but this is neither the place not the proper context.
79. LUNDVALLET AL., supra note 43, at 3-4.
80. Zedtwitz & Heimann, supra note 51, at 101, 104.
81. See supra notes 50-56 and accompanying text.
82. Maximilian von Zedtwitz & Oliver Gassmann, Market Versus Technology Drive in R&D Internationalization: Four Different Patterns of Managing Research and Development, 31 RES. POL'Y 569, 573 (2002).
83. Zedtwitz & Heimann, supra note 51, at 105.
84. Maximilian von Zedtwitz et al., Managing Foreign R&D in China, RES. & TECH. MGMT., May-June 2007, at 19, 19.
85. See CHOMSKY& FOUCAULT, supra note 45, at 42.
86. Indeed, the de-Westernization of scientific research has several deeper societal impacts. It might challenge, for instance, what Michel Foucault calls the "apparatuses of truth." "Each society," he writes, "has its regime of truth⋯ centered on the form of scientific discourse and the institutions that produce it." Id. at 168.
87. See id.
88. See Mark Lorenzen & Volker Mahnke, Global Strategy and the Acquisition of Local Knowledge: How MNCs Enter Regional Knowledge Clusters 5 (DRUID Working Paper No. 02-08, 2002), available at http://ideas.repec. Org/p/aal/abbswp/02-08.html. ("The costs of exchanging such knowledge are relatively low within clusters, allowing for frequent face-to-face meetings and on-site observations. Horizontal knowledge spillovers in clusters occur between firms that share non-strategic knowledge or, alternatively, engage in strategic R&D alliances. Hence, direct vertical or horizontal relations between firms may yield both transfers of existing knowledge, and joint creation of new knowledge. However, both these types of processes are much more complex than transferring bits of information, and hence necessitate firms to build mutual trust and common cognitive platforms. This may take considerable time and investments." (citations omitted)).
89. To quote Heinz von Foerster, I would recommend to drop disciplinarity wherever one can. Disciplines are an outgrowth of academia. In academia you appoint somebody and then in order to give him a name he must be a historian, a physicist, a chemist, a biologist, a biophysicist; he has to have a name. Here is a human being: Joe Smith-he suddenly has a label around the neck: biophysicist. Now he has to live up to that label and push away everything that is not biophysics; otherwise people will doubt that he is a biophysicist. If he's talking to somebody about astronomy, they will say 'I don't know, you are not talking about your area of competence, you're talking about astronomy, and there is the department of astronomy, those are the people over there,' and things of that sort. Disciplines are an after effect of the institutional situation. Interview with Heinz von Foerster, in 4 STAN. ELEC. HUM. REV. (1995), http://www.stanford.edu/ group/SHR/4-2/text/interviewvonf.html.
90. See id.
91. See, e.g., U.S. Patent & Trademark Office, http://patft.uspto.gov (last visited Jan. 24, 2009).
92. This is a different debate, but, unless voluntary access mechanisms can be put a in place though price discrimination or otherwise, a digital version of the appendix to the Berne Convention, which in its current form allows developing countries to issue compulsory reproduction and translation licenses of copyrighted material, might be an interesting option. It is unclear that the appendix would allow countries to use it for material that has been accessed and licensed online. A number of suggestions, some of them helpful, have been made in the Access to Knowledge (A2K) context. See, e.g., Treaty on Access to Knowledge art. 3-12(b)(vi) (Draft May 9, 2005), available at http://www.cptech.org/a2k/a2k-treaty-may9.pdf. The proposal focuses perhaps too narrowly on administrative issues and education in the traditional sense.
93. See generally CHARLESTAYLOR, MODERNSOCIALIMAGINARIES15 (2004).
94. A good example is the Montreal-based Society for Art and Technology. Using the design of artist Luc Courchesne's "Panoscope," a three-dimensional spherical installation, the Canadian Space Agency was able to solve an issue concerning the robotized arm of the U.S. Space Shuttle (sometimes referred to as the "Canada arm"). See Society for Arts and Technology, http://www.sat.qc.ca/article.php?lang=en&id-article=479 (last visited Mar. 23, 2009).
95. See Zedtwitz & Heimann, supra note 51, at 106
96. See generally ROBERTB. REICH, SUPERCAPITALISM: THE TRANSFORMATIONOF BUSINESS, DEMOCRACY, AND EVERYDAYLIFE(2007).
97. In the light of the points made above and the increasing displacement of research and innovation to developing countries, this may be short-sighted policy indeed for industrialized countries. See Gervais, supra note 6, at 38-41.
98. For the United States, this is partly mandated by federal law. See generally David C. Mowery et al., The Growth of Patenting and Licensing by U.S. Universities: An Assessment of the Effects of the Bayh-Dole Act of 1980, 30 RES. POL' Y 99 (2001).
99. See Nowotny et al., supra note 61, at 45 ("[T]he tendency of government to define its role in research funding in quasi-commercial rather than fiduciary terms [is a concern]. This attempt to align public-policy with market priorities in research policy ⋯ is likely to reduce diversity and creativity.").
100. See supra note 71 and accompanying text.
101. See Nowotny et al., supra note 61, at 45-46.
102. Id. at 46.
103. Under U.S. law, disclosure less than twelve months before the application is filed is acceptable under certain conditions. See 35 U.S.C. § 102 (2000). In most other countries, absolute novelty applies, and any disclosure before the application destroys novelty.
104. See Keith E. Maskus & Jerome H. Reichman, The Globalization of Private Knowledge Goods and the Privatization of Global Public Goods, 7 J. INT'L ECON. L. 279, 283 (2004) ("As private interests take precedence over public concerns, moreover, we argue that the proliferation of exclusive rights could raise fundamental roadblocks for the national and global provision of numerous other public goods, including scientific research, education, health care, biodiversity, and environmental protection. The architects of the new system evidently have paid little attention to these issues, believing that a clear specification of strong property rights could establish appropriate incentives for private development of modalities to advance these and other public activities. In our view, the greater likelihood is that the privatization of public-interest technologies could in many cases erect competitive barriers, raise transactions costs and produce significant anti-commons effects, which tend to reduce the supply of public goods related to innovation as such, and also to limit the capacity of single states to perform essential police and welfare functions not otherwise available from a decentralized international system of governance." (footnotes omitted)).
105. Nowotny et al., supra note 61, at 45-46.
106. The well-known World Competitiveness Report published by IMD references 331 variables (criteria). See IMD, WCY Online Version, http://www.imd.ch/research/publications/wcy/wcy-online.cfm (last visited Jan. 24, 2009).
107. See generally Francis Narin et al., The Increasing Linkage Between U.S. Technology and Public Science, 26 RES. POL'Y 317, 318, 322, 328 (1997); Bronwyn H. Hall et al., The NBER Patent Citations Data File: Lessons, Insights and Methodological Tools (Nat'l Bureau of Econ. Research, Working Paper No. 8498m, 2001), available athttp://www.nber.org/papers/ w8498.pdf. For a more critical analysis,
108. see generally ADAMB. JAFFE, INNOVATIONAND ITSDISCONTENTS: HOW OUR BROKENPATENTSYSTEMIS ENDANGERINGINNOVATIONAND PROGRESS, AND WHAT TO DO ABOUT IT (2004).
109. Campbell, supra note 56, at 86.
110. ROGERS, supra note 53, at 26.
111. Id.
112. In areas where innovation might clash head-on with religious beliefs, for example, it may be more difficult. Technologies such as contraception or the debate concerning stem-cell research in the United States are examples.
113. CHOMSKY & FOUCAULT, supra note 45, at 133.
114. I use the European Union (EU) and its twenty-seven member states as a reference.
115. See generally LIESBETHOOGHE& GARYMARKS, MULTILEVELGOVERNANCEAND EUROPEANINTEGRATION(2001).
116. See Kuhlmann, supra note 60.
117. Both factors (budgetary constraints and multilevel governance) are often linked. SeeWILLIAMWALLACE& HELENWALLACE, POLICY-MAKINGIN THE EUROPEANUNION207 (2005) ("[R]egional expenditure is dominated by strong vested interests, the proposed increases in expenditure in fields such as innovation and technology may well be rejected in order to satisfy the interest of net contributors in an austerity budget.").
118. The Arab countries' proposal to WIPO on its development agenda contained the following: As a first step, Member States should be encouraged to and assisted in setting up national strategies on intellectual property, which identify areas of strength and weakness in dealing with intellectual property systems. Remedies should be found for weak areas and areas of strength should be further enhanced with a view to attaining a successful and efficient functioning of the intellectual property system. WIPO, Proposal by the Kingdom of Bahrain on the Importance of Intellectual Property in Social and Economic Development and National Development Programs, Annex, at 6, WIPO Doc. 11M/2/2 (June 14, 2005).
119. According to the United Nations Industrial Development Organization, 94% of all privately funded research and development was located in those countries during the 1990s. See UNITED NATIONS INDUS. DEV. ORG., INDUSTRIALDEVELOPMENTREPORT2002/2003(2002), available at http://www.unido.org/fileadmin/import/userfiles/hartmany/ 12idr-full-report.pdf.
120. See supra Part I.A-B.
121. Understanding on Rules and Procedures Governing the Settlement of Disputes, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 2, Legal Instruments-Results of the Uruguay Round, 33 I.L.M. 1125 (1994);
122. see also GERVAIS, supra note 3, at 505-12. One should note that not all countries are equal when it comes to the Dispute-Settlement Understanding (DSU). The EU and the United States have resisted applying decisions of the DSU that found their legislation incompatible with their WTO obligations. The long-standing dispute between the European Union and the so-called "dollar banana" countries, see Lorand Bartels, The Appellate Body Report in European Communities-Conditions for the Granting of Tariff Preferences to Developing Countries, WT/DS246/AB/R and Its Implications for Conditionality in GSP Programs (n.d.) (unpublished manuscript, on file with the Fordham Law Review), is an example, while in the United States a panel report concerning the incompatibility of exceptions contained in § 110(5)(b) of the Copyright Act, issued in 2000, with the DSU remains unimplemented as of this writing,
123. see Albena P. Petrova, The U.S.-Section 110(5) of the Copyright Act Dispute Analysis and Forecasts for Compliance, CURRENTS: INT'L TRADEL.J., Summer 2006, at 43.
124. See GERVAIS, supra note 3, at 46-49
125. See Gervais, supra note 6, at 30-32.
126. It reads as follows: "Developed country Members shall provide incentives to enterprises and institutions in their territories for the purpose of promoting and encouraging technology transfer to least-developed country Members in order to enable them to create a sound and viable technological base." The Council for TRIPS is actively following the implementation of this provision, notably by requiring reports on technology transfer initiatives taken by developed countries. See WORLD TRADE ORG., ANNUAL REPORT 13 (2005), available at http://www.wto.org/english/res-e/booksp-e/anrep-e/ anrep05-e.pdf. For a summary of the information provided, see Council for Trade-Related Aspects of Intellectual Property Rights, Note by Secretariat: Submissions Under Article 66.2 of the TRIPS Agreement, IP/CAV/431 (Oct. 22, 2000).
127. See Gervais, supra note 6, at 30-40.
128. See supra note 59 and accompanying text.
129. See generally Chris Dent et al., Research Use of Patented Knowledge: A Review (OECD Directorate for Sci., Tech. & Indus. (STI) Working Paper No. 2006/2, 2006), available at http://www.oecd.org/ dataoecd/15/16/36311146.pdf.
130. See generally Katherine J. Strandburg, What Does the Public Get? Experimental Use and the Patent Bargain, 2004 Wis. L. REV. 81. The scope of that exemption in the United States is in doubt, however, after Madey v. Duke University, 307 F.3d 1351, 1360-61 (Fed. Cir. 2002).
131. Patent databases are publicly available. By mining recent patents and published applications (which typically implies an eighteen-month delay after the initial filing-unfortunately, in certain industries, much can happen in eighteen months) and providing copies to local companies with product development abilities, a number of upward technological steps may be taken fairly rapidly. Of course the obligation to comply with TRIPS means that if the patent is granted in the developing country in question, the technology cannot be used directly, and even a reasonable license cannot be obtained; however, the knowledge could be used, for example, for noncommercial research. As was noted by the UK Commission on Intellectual Property Rights, TRIPS Articles 8 and 40 allow a WTO member to determine an appropriate interface between intellectual property and competition law. However, many countries that implemented TRIPS recently did not and still do not have competition legislation.
132. See John H. Barton, New Trends in Technology Transfer: Implications for National and International Policy, at viii (Int'l Or. for Trade & Sustainable Dev., Issue Paper No. 18, 2007) ("The reduction of inventions to commercial application usually also requires skilled entrepreneurs and, depending on the particular field, skilled mechanics, lab technicians, or software writers. Many of the same skills are needed for the thoughtful adaption and application of a technology developed elsewhere. Hence, a broad range of scientific and technological skills is absolutely crucial for a nation to participate effectively in the international technological economy.").
133. See Edmund W. Kitch, The Patent Policy of Developing Countries, 13 UCLA PAC. BASINL.J. 166,174(1994).
134. As noted in a study by Queen Mary University, "The implementation of international agreements in poor countries is often hindered through a lack of institutional structures that would serve as a basis for or facilitate the implementation of new legislation. In many cases this leads to incomplete implementation or adverse effects . ⋯" Queen Mary University, Impacts of IPR Rules on Sustainable Development 3 (Nov. 2006) (unpublished report, on file with the Fordham Law Review).
135. See, e.g., The African Regional Industrial Property Organization, http://www.aripo.org/(last visited Mar. 15, 2008).
136. See Barton, supra note 115, at 32 ("[T]he subsidy criterion described previously must be the basis for all national technology policy. It clearly favors strong support for scientific education and for basic research in areas that are important to the particular nation and neglected by world technological research. The criterion favors academic research in areas of local interest, and, where the nation has specific capability, of global interest.").
137. See supra note 95 and accompanying text.
138. See supra note 99 and accompanying text.
139. Kevin Kennedy, The 2005 TRIPS Extension for the Least-Developed Countries: A Failure of the Single Undertaking Approach?', 40 INT'L L. 683, 699 (2006).
140. See generally Daniel J. Gervais, A TRIPS Implementation Toolbox, in INTELLECTUAL PROPERTY, TRADEAND DEVELOPMENT, supra note 6, at 527.
141. JOHNLOCKE, TWO TREATISESOF GOVERNMENT290, 295 (Peter Laslett ed., 1988) (1690).
142. See Gervais, supra note 39, at 3.
143. TRIPS, supra note 1, arts. 7, 66, 69.
144. See Gervais, supra note 6.