Harmony and Diversity in Global Patent Law

Abstract

The second half of the twentieth century saw the rise of a broad movement to harmonize patent laws across nation-states. The most recent, and most significant, manifestation of this movement is the 1994 TRIPS Agreement, which requires signatory nations to adopt uniform rules on many major issues of patent law. The TRIPS Agreement has now been implemented by well over one hundred countries, including almost all major industrial nations, and it heralds a new level of international uniformity in patent law. This Article, while acknowledging the value of some harmonization of national law , explores the possible costs of the harmonization movement. Patent law itself owes its very birth not to harmony but to diversity of national law. The fifteenth-century Venetian patent statute was an experiment in law and a departure from the classical hostility to monopoly. Throughout the history of patent law, individual nations have varied their law and practice, and the results of these experiments have strengthened and improved patent practice. Diversity and experimentation continue today. As case studies of such experimentation, this Article examines business method patents and law governing the experimental use defense to patent infringement, an area in which both commentators and nations have split as to the proper approach for the law. This Article concludes that the patent law of the twenty-first century would be enriched if national and international policymakers learn to value variety.

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