Essay on "Inherently Unequal Trips"

Essay 12 pages (4082 words) Sources: 12 Style: Harvard

[EXCERPT] . . . .

An Overview of the Inherently Unequal TRIPS Agreement

In consideration of the TRIPS agreement and its implications to the

global community, it is important to evaluate the relevance of its

establishment as a function of the World Trade Organization (WTO). As this

discussion will yield, the TRIPS agreement is the product of a history of

international conventions as well as an actuality produced by the trade

liberalization sparked after the end of the Cold War. To the latter

occurrence, one may attribute the opening of countless new international

trade relationships, the deconstruction of politically motivate blockades

and the vast flooding of the international community with nations in

genuine need of development strategy. 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 would promote the idea and the

parameters of an international standard on the subjects of intellectual

property and patent-holding, it would not be until the establishment of the

WTO that any real global mandate could exist for contending with 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, offering the structural conditions and

assembled authority to exact a legitimate level of authority over its

member nations. This accounts for the appropriation of many of the

conditions resulting from previous global conventions relating to

intellectual property for use in the TRIPS legislation, with its

reinforcement under the parameters of the new WTO denoting an intellectual

property structure with theretofore unprecedented regulatory relevance.

In considering the text of the TRIPS agreement in light of its legal

implications and some recent case history, the function of the WTO comes

into more vivid focus. Indeed, we can see through its approach to

intellectual property and patent protections, which its legislative and

philosophical thrust tends to endorse as a mode to sustainable global

development, that the WTO is designed to reduce the impact of tariffs,

diplomatic trade obstructions and basic social/legal/political differences

in the interests creating globally viable standards in 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.

The analysis of the legal implications of the conditions established

by the Agreement on Trade-Related Aspects of Intellectual Property Rights

(TRIPS) contained here, with a specific focus directed toward understanding

the ways in which its policies differ both from former internationally

governing agreements or conventions on the subject of intellectual property

rights and from currently existent or currently subsiding domestic policies

on the subject of intellectual property rights. The core of the focus in

this analysis will be on 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 would induce a collective

acceptance of a minimum of standards for the protection of intellectual

property and patent rights that, by its own declaration, would be yielded

by precedents in these categories set by the Paris Convention and the Berne

Convention. These would define all the forms of intellectual property to

ultimately be assessed and categorized in the TRIPS agreement, making due

for protection under a new and legally enforceable framework such

properties as have typically been understood as subject to patent

protection for the innovative value to societies and economies. (Gervais,

1)

This agreement requires a great deal of ongoing judicial attention,

particularly to the inherently fluctuating nature of the agreement. Such

is to say that its interest in bringing many nations gradually into the

fold through the encouragement of measured adoptions 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 protections for intellectual

properties in domestic legal systems will result in global disputes.

The function of the WTO as a forum for collecting the input of the

international trade community on the actions of its member states and

aspiring member states may be noted in one such dispute. This one, between

the Novartis pharmaceutical corporate and the nation of India, is

demonstrable of the chief cause for dispute, in which a company and its

related member state will file complaint against another member state

refusing to acknowledge its right to patent protection. In the Novartis

lawsuit against India, the company has placed pressure on the developing

nation to expedite its integration into a global patenting system,

suggesting that the Doha Declaration affirmations have been met with

ongoing hostility by internationalizing corporations seeking to establish

newly protective markets for their exclusive patenting rights. (Oxfam, 2)

One of the defining characteristics of Doha would be its affirmation

of the right reserved for all cosigners of the 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 accompanies with right of the

member nation to grant such compulsory licenses according to their own

grounds. (WTO, 1) Naturally, the patent holding organization may appeal to

the international governing body in order to find an intervening

application of the overall intent of the TRIPS agreement. The Doha

Declaration, though it leans in the direction of diminishing the pressure

placed upon developing countries to make unnecessary or premature

restrictions upon appropriately flexible patenting practices, nonetheless

attempts to strike a balance to the end of maintaining the overall thrust

toward greater, as opposed to lesser or static, restrictions upon 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.

Indeed, the TRIPS agreement devises to improve through patent

production the alignment of developing nations with developed ones, as

demonstrated by the 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 the issue

of drug patenting, the United States has itself adopted a policy whereby

its own internal structures are designed to counteract such resistance.

The study here goes on to indicate that in addition to the clear economic

dangers of imposed by economic sanctions, national governments will often

bow to the pressure of more dominant trade partners in the interests of

retaining positive diplomatic and political conditions therewith. 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 of any legitimate oversight bodies. Much evidence

suggests that the economic robustness of a trade partner is likely to play

a greater role in the shaping of this 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 latter to establish a universal patenting standard

that conforms with inherently stricter western policies. To this end, one

of the clearest modes through which to observe the embattled nature of the

intentions to the Doha Declaration is the fully unchanged position by

western pharmaceutical companies on the subject of compulsory licenses,

which powerful lobby groups and governments have conspired to legally

obstruct. As it falls upon the member nation from which a patent seeking

or 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. Certainly, as

we continue to explore the legal and realistic implications of TRIPS, its

important to note that corporate policies 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 favours the development of a more protective and restrictive

policy in heretofore lax developing nations, it is understood that the

TRIPS agreement is consistent with the conventions which had established

precedent for its conditions over the course of more than a century of

international legislation. It does pave more concretely the way for

globalizing corporations to indulge the benefits afforded them in the

developed world in spheres with lesser economic, legal or infrastructural

stability.

In Article 3 of the agreement,… READ MORE

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