Flexibilities in the Patent System: WIPO Patent Colloquium

• Author: Elizabeth March
• Position: WIPO Magazine Editorial Staff, Communications and Public Outreach Division

What room for maneuver do governments need within the international patent law system so as to enable them to safeguard national interests? Should the balance between obligations and flexibilities in the current system be adjusted? Such questions were debated at a recent WIPO colloquium on patent issues - one in a series of public colloquia, designed to offer information on a range of patent-related topics, and to provide an informal forum for participants to exchange views.

The February 16 colloquium, held at WIPO headquarters, addressed the topical theme of the "flexibilities" in the patent system, i.e., the space for maneuver by national governments, which is allowed within the rules governing the international patent system. These flexibilities recognize that, while international harmonization of patent standards helps facilitate trade and investment in a global economy, there also needs to be sufficient leeway to accommodate national differences, notably in terms of differing levels of economic development, and public policy concerns. This surfaced as a hotly debated issue during negotiations leading up to - and following - the 1994 Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement).

Two invited experts presented the colloquium with complementary views on the evolution and effectiveness of the flexibilities in the current system: Dr. N. S. Gopalakrishnan, Professor in IP law at the Cochin University of Science and Technology, India; and Professor Joseph Straus, Director of the Munich-based Max Planck Institute for Intellectual Property, Competition and Tax Law, Germany.

Narrowing of flexibilities

Professor Gopalakrishnan gave an historical overview, in which he traced the progressive narrowing of flexibilities through three main phases: from the 1624 English Statute of Monopolies to the Paris Convention (1883); from the Paris Convention to TRIPS (1995); and from TRIPS onwards.

During the initial phase of "total flexibility," each country's patent system was based on standards determined entirely by the national government. Patents, seen as a privilege granted by the state, were used to facilitate investment and build up the national, industrial base. But there was no obligation to protect foreign inventions, imitation was rife, and incentives for innovation were inadequate.

The Paris Convention, Professor...