INTERNATIONAL INTELLECTUAL PROPERTY LAW AND THE PUBLIC DOMAIN OF SCIENCE

Abstract

The TRIPS Agreement can be read to reflect a static view of the structure of intellectual property law. In this paper, we address whether – and how – the TRIPS Agreement can, on the other hand, be read with more fluidity, and thus to allow adjustments in national intellectual property regimes designed to reflect the dynamic nature of information production. To focus that inquiry, we concentrate on efforts to ensure a broader public domain for ‘upstream’ inventions by modifying various elements of US patent law. The paper considers three stylized examples and asks whether each approach could be adopted by the United States without falling afoul of the TRIPS Agreement as it is currently understood. Our purpose is to identify interpretive approaches that allow member states to keep their laws attuned to the developments and needs of science. But in so doing, we also raise broader questions regarding the level of formalism generated by the WTO dispute settlement system, and the extent to which the TRIPS Agreement allocates power between supranational and national institutions, and between international and national laws.

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