1 See General Council, Amendment of the TRIPS Agreement, WT/L/641 (Dec. 8, 2005), available at http://www.wto.org/english/tratop_e/trips_e/wtl641_e.htm [hereinafter TRIPs Amendment].

2 See 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. 1197 (1994) [hereinafter TRIPs Agreement], available at http://www.wto.org/english/docs_e/legal_e/27-trips.pdf.

3 See World Trade Organization [WTO], Declaration on the TRIPS Agreement and Public Health, WT/MIN(01)/DEC/2, 41 I.L.M. 755 (2002) [hereinafter Doha Declaration].

4 Although the initial deadline for ratification was December 1, 2007, the deadline has been recently extended for another two years. William New, TRIPS Council Extends Health Amendment; Targets Poor Nations’ Needs, Intell. Prop. Watch, Oct. 23, 2007, http://www.ipwatch.org/weblog/index.php?p=798. As of this writing, slightly over a quarter of the 151 WTO member states, including the United States, India, Japan, China, and most recently members of the European Communities, have ratified the proposed amendment. Press Release, WTO, Countries Accepting Amendment of the TRIPS Agreement (Aug. 2, 2007), http://www.wto.org/english/tratop_e/trips_e/amendment_e.htm.

5 TRIPs Amendment, supra note 1, art. 31bis(3).

6 The TRIPs Agreement distinguishes between developing and least developed countries. This Article uses “less developed countries” to denote both developing and least developed countries. When referring to the TRIPs Agreement, however, this Article returns to the terms “developing countries” and “least developed countries.”

7 See Yu, Peter K., The International Enclosure Movement, 82 Ind. L.J. 827, 848 (2007)Google Scholar.

8 See Abbott, Frederick M. & Reichman, Jerome H., The Doha Round's Public Health Legacy: Strategies for the Production and Diffusion of Patented Medicines Under the Amended TRIPS Provisions, 10 J. Int’l Econ. L. 921, 973–77 (2007)Google Scholar (discussing the potential benefits of pooled procurement strategies and the establishment of regional pharmaceutical supply centers).

9 See Sisule F. Musungu et al., Utilizing TRIPS Flexibilities for Public Health Protection Through South-South Regional Frameworks, xv-xvi (2004), http://www.southcentre.org/index2.php?option=com_docman&task=doc_view&gid=9&Itemid=68 (advocating the establishment of “regional procurement systems where they would jointly conduct tendering through an entity acting on their behalf and a central purchasing agency managing the purchases on behalf of all the member countries”); see also id. at 70–73 (discussing regional procurement systems).

10 See TRIPs Amendment, supra note 1, art. 31bis annex ¶ 5.

11 See id. art. 31bis(3) (requiring that “at least half of the current membership of [the regional trade agreement] is made up of countries presently on the United Nations list of least developed countries”).

12 Abbott & Reichman, supra note 8, at 945.

13 Dominic Wilson & Roopa Purushothaman, Dreaming with BRICs: The Path to 2050 (Goldman Sachs, Global Economics Paper No. 99), http://www2.goldmansachs.com/ideas/globalgrowth/99-dreaming.pdf.

14 Goldman Sachs Global Economics Group, BRICs and Beyond 5 (2007) [hereinafter BRICs and Beyond].

15 Wilson & Purushothaman, supra note 13, at 4.

16 See, e.g., Building a Future with BRICs: The Next Decade for Offshoring 1, 3 (Mark Kobayashi-Hillary ed., 2008) [hereinafter Building a Future with BRICs]; Emerging Economies and the Transformation of International Business: Brazil, Russia, India and China (Subhash C. Jain ed., 2007) [hereinafter Emerging Economies]; BRICs and Beyond, supra note 14; Wilson, Dominic et al., The BRICs and Global Markets: Crude, Cars and Capital (Goldman Sachs, Global Economics Paper No. 118, 2004)Google Scholar, available at http://www.new-frontiers.org/classicdocs/thebricsreport.pdf.

17 Wilson et al., supra note 16, at 4.

18 Id.

19 Id. at 11.

20 See Press Release, Brazilian Ministry of Health, Brasil decreta licenciamento compulsório do Efavirenz (May 5, 2007), available at portal.saude.gov.br/portal/aplicacoes/noticias/noticias_detalhe.cfm?co_seq_noticia=29717. As Robert Bird and Daniel Cahoy have noted, “[i]t is likely that the move was at least partially sparked by the desire to obtain the same price Thailand secured following its successful issuance of several compulsory licenses for AIDS and heart drugs.” Bird, Robert C. & Cahoy, Daniel R., The Emerging BRIC Economies: Lessons from Intellectual Property Negotiation and Enforcement, 5 Nw. J. Tech. & Intell. Prop. 400, 421 (2007)Google Scholar [hereinafter Bird & Cahoy, Emerging BRIC Economies].

21 't Hoen, Ellen, TRIPS, Pharmaceutical Patents, and Access to Essential Medicines: A Long Way from Seattle to Doha, 3 Chi. J. Int’l L. 27, 32 (2002)Google Scholar.

22 See id. (noting that “[t]he Brazil AIDS program serves as a model for some developing countries that are able to produce medicines locally”); Comm’n on Intellectual Prop. Rights, Integrating Intellectual Property Rights and Development Policy: Report of the Commission on Intellectual Property Rights 43 (2003) (noting that the National STD/AIDS Programme in Brazil “has been widely acclaimed as a possible model for other countries”); Odell, John S. & Sell, Susan K., Reframing the Issue: The WTO Coalition on Intellectual Property and Public Health, 2001, in Negotiating Trade: Developing Countries in the WTO and NAFTA 85, 96 (John S. Odell ed., 2006)Google Scholar (observing that “[d]eveloping countries looked to Brazil as a beacon of hope in strategies to combat the HIV/AIDS crisis”).

23 See Watal, Jayashree, Intellectual Property Rights in the WTO and Developing Countries 19 (2001)Google Scholar. The other countries were Argentina, Cuba, Egypt, India, Nicaragua, Nigeria, Peru, Tanzania, and Yugoslavia.

24 The current members of the G–20 are Argentina, Bolivia, Brazil, Chile, China, Cuba, Ecuador, Egypt, Guatemala, India, Indonesia, Mexico, Nigeria, Pakistan, Paraguay, Peru, Philippines, South Africa, Tanzania, Thailand, Uruguay, Venezuela, and Zimbabwe. The website of the G–20 is available at http://www.g-20.mre.gov.br. Notably, the G–20 includes all BRICS countries that are members of the WTO. G-20, G-20 Members, http://www.g-20.mre.gov.br/members.asp (last visited Apr. 10, 2008).

25 See Elizabeth Becker, Poorer Countries Pull Out of Talks Over World, N.Y. Times, Sept. 15, 2003, at A1; Editorial, The Cancun Failure, N.Y. Times, Sept. 16, 2003, at A24 [hereinafter The Cancun Failure].

26 See Press Release, World Intellectual Prop. Org. [WIPO], Member States Agree to Further Examine Proposal on Development (Oct. 4, 2004), available at http://www.wipo.int/edocs/prdocs/en/2004/wipo_pr_2004_396.html.

27 Press Release, WIPO, Member States Adopt a Development Agenda for WIPO (Oct. 1, 2007), available at http://www.wipo.int/pressroom/en/articles/2007/article_0071.html.

28 See Fitzgerald, Brian & Suzor, Nic, Legal Issues for the Use of Free and Open Source Software in Government, 29 Melb. U. L. Rev. 412, 422 (2005)Google Scholar (including South Africa, Brazil, Spain, Finland, and India among “examples of governments moving towards open source solutions”); Olejko, Daniel F., Comment, Charming a Snake: Open Source Strategies for Developing Countries Disillusioned with TRIPs, 25 Pa. St. Int’l L. Rev. 855, 858 (2007)Google Scholar (noting that “[t]he [open source] movement's strongest support and largest concentration of countries lies in South America where Argentina, Brazil, Chile, Peru, and Venezuela have displayed wide acceptance of open source software in both government and industry”).

29 See Request for Consultations by Brazil, United States—US Patents Code, WT/DS224/1 (Feb. 7, 2001). It is important to note that the request was made in response to the United States’ challenge of Brazil's patent laws before the WTO. As Gregory Shaffer lamented, “Brazil … never seriously pursued their claims to advance commercial interests, but rather searched for bargaining chips for a potential settlement of the US and EC complaints.” Shaffer, Gregory, Recognizing Public Goods in WTO Dispute Settlement: Who Participates? Who Decides? The Case of TRIPS and Pharmaceutical Patent Protection, 7 J. Int’l Econ. L. 459, 471 (2004)Google Scholar [hereinafter Shaffer, Recognizing Public Goods].

30 See Request to Join Consultations by India, United States—US Patents Code, WT/DS224/2 (Feb. 19, 2001).

31 See Ragavan, Srividhya, Of the Inequals of the Uruguay Round, 10 Marq. Intell. Prop. L. Rev. 273, 278–89 (2006)Google Scholar (discussing the Ayyangar Committee Report and early patent reforms in India).

32 See Drahos, Peter, Securing the Future of Intellectual Property: Intellectual Property Owners and Their Nodally Coordinated Enforcement Pyramid, 36 Case W. Res. J. Int’l L. 53, 76 (2004)Google Scholar (noting that “India's success in building a strong pharmaceutical industry was based in large measure upon its recognition of patents for pharmaceutical processes, but not for pharmaceutical products”).

33 See id. at 289–92.

34 See Ringer, Barbara A., The Role of the United States in International Copyright— Past, Present, and Future, 56 Geo. L.J. 1050, 1065 (1968)Google Scholar. For a detailed discussion of the origin and aftermath of the Stockholm Protocol, see Ricketson, Sam & Ginsburg, Jane C., International Copyright and Neighboring Rights: The Berne Convention and Beyond 879–963 (2d ed. 2005)Google Scholar.

35 See Yu, Peter K., Currents and Crosscurrents in the International Intellectual Property Regime, 38 Loy. L.A. L. Rev. 323, 328 (2004)Google Scholar [hereinafter Yu, Currents and Crosscurrents].

36 Paris Convention for the Protection of Industrial Property, Mar. 20, 1883, as last revised at Stockholm, July 14, 1967, 21 U.S.T. 1538, 828 U.N.T.S. 305.

37 Watal, supra note 23, at 16.

38 See id.

39 See Yu, Currents and Crosscurrents, supra note 35, at 357–66.

40 See IP Justice, United States Trade Representative (USTR) Section 301 Annual Reports (2001-2007), ipjustice.org/USTR/Section_301_Table_2001-2007.htm (last visited Jan. 26, 2008).

41 Panel Report, India—Patent Protection for Pharmaceutical and Agricultural Chemical Products, WT/DS50/R (Sept. 5, 1997); Panel Report, India—Patent Protection for Pharmaceutical and Agricultural Chemical Products, WT/DS79/R (Aug. 24, 1998). Article 70(8) of the TRIPs Agreement requires those member states that do not offer protection for patents in pharmaceutical and agricultural chemical products to introduce a mechanism to adequately preserve the novelty and priority of applications for the affected patents. TRIPs Agreement, supra note 2, art. 70(8). Article 70(9) further requires these member states to establish a system for granting exclusive rights to market the affected products. Id. art. 70(9).

42 For a comprehensive discussion of the recent changes in Indian patent law, see generally Mueller, Janice M., The Tiger Awakens: The Tumultuous Transformation of India's Patent System and the Rise of Indian Pharmaceutical Innovation, 68 U. Pitt. L. Rev. 491 (2007);Google Scholar Ragavan, supra note 31.

43 See Yu, The International Enclosure Movement, supra note 7, at 863.

44 Kamal Nath, India's Century 110 (2008); see also Chien, Colleen, HIV/AIDS Drugs for Sub-Saharan Africa: How Do Brand and Generic Supply Compare?, 2 PLOS ONE e278 (2007)CrossRefGoogle Scholar (reporting that India provided 85% of generic HIV/AIDS antiretrovirals in Sub-Saharan Africa), available at ssrn.com/abstract=1009287.

45 Symposium, China and the WTO: Progress, Perils, and Prospects, 17 Colum. J. Asian L. 1, 2 (2003) [hereinafter Symposium, China and the WTO].

46 For discussions of piracy and counterfeiting problems in China in the 1980s and 1990s, see Yu, Peter K., From Pirates to Partners: Protecting Intellectual Property in China in the Twenty-First Century, 50 Am. U. L. Rev. 131 (2000)Google Scholar [hereinafter Yu, From Pirates to Partners I]; Yu, Peter K., Piracy, Prejudice, and Perspectives: Using Shakespeare to Reconfigure the U.S.-China Intellectual Property Debate, 19 B.U. Int’l. L.J. 1 (2001)CrossRefGoogle Scholar.

47 See Request for the Establishment of a Panel by the United States, China—Measures Affecting the Protection and Enforcement of Intellectual Property Rights, WT/DS362/7 (Aug. 21, 2007).

48 Constitution of the Panel Established at the Request of the United States, China— Measures Affecting the Protection and Enforcement of Intellectual Property Rights, WT/DS362/8 (Dec. 13, 2007). Third parties involved in this dispute include Argentina, Australia, Brazil, Canada, the European Communities, India, Japan, Korea, Mexico, Chinese Taipei, Thailand, and Turkey. Id. ¶ 5.

49 See Yu, Peter K., From Pirates to Partners (Episode II): Protecting Intellectual Property in Post-WTO China, 55 Am. U. L. Rev. 901, 975–99 (2006)Google Scholar [hereinafter Yu, From Pirates to Partners II] (examining the progress China has made in the intellectual property arena).

50 See Yu, Peter K., International Enclosure, the Regime Complex, and Intellectual Property Schizophrenia, 2007Google Scholar Mich. St. L. Rev. 1, 25–26 [hereinafter Yu, International Enclosure, the Regime Complex].

51 See Gao, Henry S., China's Participation in the WTO: A Lawyer's Perspective, 11 Sing. Yb. Int’l L. 1, 29–30 (2007)Google Scholar (explaining why “China has consistently taken a low profile in all WTO activities”); see also Yan Li, Faint Silhouette: Can China Be a WTO Leader?, Wash. Observer, Dec. 14, 2005, http://www.washingtonobserver.org/en/topic.cfm?topicid=29&charid=3 (reporting an interview with the Author on China's potential leadership in the WTO).

52 Cho, Sungjoon, A Bridge Too Far: The Fall of the Fifth WTO Ministerial Conference in Cancún and the Future of Trade Constitution, 7 J. Int’l Econ. L. 219, 235 (2004)Google Scholar.

53 See Bird & Cahoy, The Emerging BRIC Economies, supra note 20, at 409 (noting that “India lacks the economic power of China and the political importance of Russia in the eyes of the United States”).

54 Symposium, China and the WTO, supra note 45, at 2.

55 See Int’l Intellectual Prop. Alliance, 2007 Special 301 Report 115 (2007) (noting that “Russia's current copyright piracy problem remains one of the worst of any country in the world”).

56 See Office of the U.S. Trade Representative, 2007 National Trade Estimate Report on Foreign Trade Barriers 498 (2007).

57 See Wilson & Purushothaman, supra note 13, at 11.

58 See, e.g., Sell, Susan K., Private Power, Public Law: The Globalization of Intellectual Property Rights 146–62 (2003)CrossRefGoogle Scholar; Halbert, Debora, Moralized Discourses: South Africa's Intellectual Property Fight for Access to AIDS Drugs, 1 Seattle J. Soc. Just. 257 (2002)Google Scholar; 't Hoen, supra note 22.

59 See Rolland, Sonia E., Developing Country Coalitions at the WTO: In Search of Legal Support, 48 Harv. Int’l L.J. 483, 496 (2007)Google Scholar.

60 General Council, Implementation of Paragraph 6 of the Doha Declaration on the TRIPS Agreement and Public Health, WT/L/540 (Sept. 1, 2003), 43 I.L.M. 509 (2004).

61 See Yu, The International Enclosure Movement, supra note 7, at 865–66.

62 See Sell, supra note 58, at 181 (observing that “[t]he HIV/AIDS pandemic was a contingency that sped up the revelation of the negative consequences of TRIPS”); Mayne, Ruth, The Global Campaign on Patents and Access to Medicines: An Oxfam Perspective, in Global Intellectual Property Rights: Knowledge, Access and Development 244, 249 (Drahos, Peter & Mayne, Ruth eds., 2002)Google Scholar (noting that “[t]he South African government's decision to fight the case was a critical factor in generating global media interest”).

63 See Sell, supra note 58, at 151.

64 See id. at 152.

65 See id. at 152-53; see also Halbert, supra note 58, at 270.

66 See 't Hoen, supra note 21, at 31.

67 For a discussion of the different challenges confronting the BRICS countries, see Jack N. Behrman, Peak and Pits with the BRICs: Accommodations with the West, in Emerging Economies, supra note 13, at 513.

68 Wilson & Purushothaman, supra note 13, at 3.

69 Id. at 2.

70 Id.

71 Wilson et al., supra note 16, at 3.

72 Abbott, Frederick M., Toward a New Era of Objective Assessment in the Field of TRIPS and Variable Geometry for the Preservation of Multilateralism, 8 J. Int’l Econ. L. 77, 88 (2005)Google Scholar. Notably, Professor Abbott did not include Russia in his discussion, because it was not a WTO member. Id.

73 Drahos, Peter, Developing Countries and International Intellectual Property Standard-Setting, 5 J. World Intell. Prop. 765, 784 (2002)Google Scholar [hereinafter Drahos, Developing Countries]. Professor Drahos also excluded Russia. Id. Unlike Professor Abbott, however, Professor Drahos included Nigeria, instead of South Africa, in the mix. Id. Although South Africa is included in the BRICS acronym used throughout this Article, Nigeria remains of great importance within the African continent. As Chris Alden noted: “Like its South African counterpart, the Nigerian government harbours ambitions to take up the proposed African permanent seat on the UN Security Council … .” Chris Alden, China in Africa: Partner, Competitor or Hegemon? 69 (2007). Likewise, in a recent report on the BRIC economies, Jim O’Neill noted: “Nigeria is one country that deserves a special mention, and is certainly a country that has captured my attention. With a population close to three times that of South Africa, Nigeria's ability to deliver on our dream could be vital for the whole African continent.” BRICs and Beyond, supra note 14, at 6.

74 See Yu, Currents and Crosscurrents, supra note 35, at 363.

75 For information about trilateral cooperation between the European Patent Office, the Japanese Patent Office, and the U.S. Patent and Trademark Office, see Website of the Trilateral Co-operation, http://www.trilateral.net (last visited Apr. 17, 2008).

76 For a recent critique of the proposed Substantive Patent Law Treaty, see generally Reichman, Jerome H. & Dreyfuss, Rochelle Cooper, Harmonization Without Consensus: Critical Reflections on Drafting a Substantive Patent Law Treaty, 57 Duke L.J. 85 (2007)Google Scholar.

77 See Narlikar, Amrita, International Trade and Developing Countries: Bargaining Coalitions in the GATT and WTO 200 (2003)Google Scholar (noting that “[t]he Cairns Group utilized the rift within the US-EC with great skill”); Rolland, supra note 59, at 503 (noting the “strategic exploitation of rifts between the United States, the EU, and Japan”); Yu, Peter K., TRIPS and Its Discontents, 10 Marq. Intell. Prop. L. Rev. 369, 406–08 (2006)Google Scholar (noting the need to “explore the tension between the European Communities and the United States”).

78 John S. Odell, Introduction to Negotiating Trade, supra note 22, at 1, 13.

79 Cf. Mark Kobayashi-Hillary, Introduction to Building a Future with BRICs, supra note 16, at 1, 3 (“If the BRICs were to join together and form a unique trading bloc of countries that are not even geographical neighbors, but complementary in other ways, then they could create a formidable rival to the present world-order and established power structures.”).

80 See Yu, Currents and Crosscurrents, supra note 35, at 357.

81 See Keith E. Maskus & Jerome H. Reichman, The Globalization of Private Knowledge Goods and the Privatization of Global Public Goods, in International Public Goods and Transfer of Technology Under a Globalized Intellectual Property Regime 3, 36–39 (Keith E. Maskus & Jerome H. Reichman eds., 2005) (calling for a “moratorium on stronger international intellectual property standards”).

82 See Yu, The International Enclosure Movement, supra note 7, at 897–99 (discussing the need for undertaking empirical research to determine whether the additional intellectual property protection is needed in the first place).

83 Roffe, Pedro et al., From Paris to Doha: The WTO Doha Declaration on the TRIPS Agreement and Public Health, in Negotiating Health: Intellectual Property and Access to Medicines 9, 15 (Pedro Roffe et al. eds., 2006)Google Scholar.

84 Narlikar, supra note 77, at 57.

85 Joan Rovira, Creating and Promoting Domestic Drug Manufacturing Capacities: A Solution for Developing Countries, in Negotiating Health, supra note 83, at 227, 236.

86 See generally Yu, The International Enclosure Movement, supra note 7, at 872–86 (tracing the development of proposed article 31bis of the TRIPs Agreement).

87 See Drahos, Developing Countries, supra note 73, at 769 (“For the United States, developing country proposals for exclusive compulsory licensing amounted to little more than expropriation of U.S. intellectual property rights.”).

88 Benvenisti, Eyal & Downs, George W., Distributive Politics and International Institutions: The Case of Drugs, 36 Case W. Res. J. Int’l L. 21, 44 (2004)Google Scholar.

89 Rovira, supra note 85, at 234.

90 See id. at 229 (noting that a limited market size “might make unprofitable a local industry restricted to the domestic market”).

91 See Maskus, Keith E., Ensuring Access to Essential Medicines: Some Economic Considerations, 20 Wis. Int’l L.J. 563, 568 (2002)Google Scholar (“[P]urchasing power, even if aggregated across a number of markets, may not be enough to make drug development attractive.”).

92 As the Federal Food, Drug, and Cosmetic Act stated:

A drug shall be considered to be bioequivalent to a listed drug if—

• (i) the rate and extent of absorption of the drug do not show a significant difference from the rate and extent of absorption of the listed drug when administered at the same molar dose of the therapeutic ingredient under similar experimental conditions in either a single dose or multiple doses; or

• (ii) the extent of absorption of the drug does not show a significant difference from the extent of absorption of the listed drug when administered at the same molar dose of the therapeutic ingredient under similar experimental conditions in either a single dose or multiple doses and the difference from the listed drug in the rate of absorption of the drug is intentional, is reflected in its proposed labeling, is not essential to the attainment of effective body drug concentrations on chronic use, and is considered medically insignificant for the drug.

21 U.S.C. § 355(j)(8)(B) (2004).

93 Rovira, supra note 85, at 234.

94 Id. (citing W.A. Kaplan & R. Laing, Local Production of Pharmaceuticals: Industrial Policy and Access to Medicines: An Overview of Key Concepts, Issues and Opportunities for Future Research (World Bank, HNP Discussion Papers, 2005), siteresources.worldbank.org/HEALTHNUTRITIONANDPOPULATION/Resources/281627-1095698140167/KaplanLocalProductionFinal.pdf).

95 Rovira, supra note 85, at 233 (quoting World Health Organization, Manufacture of Antiretrovirals in Developing Countries and Challenges for the Future, at 1, EB114/15 (Apr. 29, 2004), available at http://www.who.int/gb/ebwha/pdf.files/EB114/B11415-en.pdf)

96 See Burci, Gian Luca & Vignes, Claude–Henri, World Health Organization 188 (2004)Google Scholar (“[E]ven if drugs are available, weak drug regulation may mean that they are substandard or counterfeit.”); Musungu et al., supra note 9, at 28 (“Many developing countries … lack the facilities and expertise needed to review the safety, efficacy and quality of drugs destined for their national markets, and remain dependent on foreign authorities to set the necessary standards and do the necessary testing.”); Nanda, Nitya & Lodha, Ritu, Making Essential Medicines Affordable to the Poor, 20 Wis. Int’l L.J. 581, 586 (2002)Google Scholar (“Surveys from a number of developing countries show that between 10 and 20 percent of sampled drugs fail quality control tests.”).

97 See Dimitry Ponomarev, Dreaming with BRICs, in Building a Future with BRICs, supra note 16, at 87, 89 (noting that the four BRIC countries “perfectly complement each other”).

98 See Karin Timmermans, Ensuring Access to Medicines in 2005 and Beyond, in Negotiating Health, supra note 83, at 41, 42 (noting that “Indian companies are major suppliers of generic medicines and of the active pharmaceutical ingredients (APIs) necessary for their production to other developing and developed countries”).

99 Rovira, supra note 85, at 231.

100 Id.

101 See Mossinghoff, Gerald J., Research-Based Pharmaceutical Companies: The Need for Improved Patent Protection Worldwide, 2 J.L. & Tech. 307, 307 (1987)Google Scholar (“Whether [the commitment of America's research-based pharmaceutical companies] can continue depends greatly upon the extent to which foreign governments allow innovators to be rewarded for their inventiveness, monetary investment, and intellectual labor.”); Slinn, Judy, Research and Development in the UK Pharmaceutical Industry from the Nineteenth Century to the 1960s, in Drugs and Narcotics in History 168, 168 (Porter, Roy & Teich, Mikul eds., 1995)Google Scholar (noting that “new drugs must be sold worldwide, since no company can fully exploit a patented product, recouping its research and development costs solely in its own home market, even in the two largest national markets, the USA and Japan”), quoted in Dutfield, Graham, Intellectual Property Rights and the Life Science Industries: A 20th Century History 108 (2003)Google Scholar.

102 Mark Kobayashi-Hillary, Conclusion, in Building a Future with BRICs, supra note 16, at 185, 186.

103 Chaudhuri, Shubham & Ravallion, Martin, Partially Awakened Giants: Uneven Growth in China and India, in Dancing with Giants: China, India, and the Global Economy 175, 175–76 (Alan Winters, L. & Yusuf, Shahid eds., 2007)Google Scholar [hereinafter Dancing with Giants].

104 See Yu, Peter K., Intellectual Property, Economic Development, and the China Puzzle, in Intellectual Property, Trade and Development: Strategies to Optimize Economic Development in a TRIPS Plus Era 173, 198–209 (Gervais, Daniel J. ed., 2007)Google Scholar; see also Maskus, Keith E. et al., Intellectual Property Rights and Economic Development in China, in Intellectual Property and Development: Lessons from Recent Economic Research 295, 322–23 (Carsten Fink & Maskus, Keith E. eds., 2005)Google Scholar (noting the “large regional differences in the shares of R&D performed by various organizations” in China).

105 Nath, supra note 44, at 151.

106 Robyn Meredith, The Elephant and the Dragon: The Rise of India and China and What It Means for All of Us 126 (2007).

107 Thanks to Brook Baker for providing detailed and informative comments on the development of the pharmaceutical sectors in the BRICS countries.

108 See Yu, International Enclosure, the Regime Complex, supra note 50, at 16–17.

109 Cho, supra note 52, at 236 (footnotes omitted). Similarly, Sonia Rolland observed the different positions on agriculture taken by Brazil and India:

Rolland, supra note 59, at 495.

110 Abbott, Frederick, The Future of IPRs in the Multilateral Trading System, in Trading in Knowledge: Development Perspectives on TRIPS, Trade and Sustainability 36, 42 (Bellmann, Christophe et al. eds., 2003)Google Scholar [hereinafter Abbott, Future of IPRs].

111 See Narlikar, supra note 77, at 176.

112 See Rolland, supra note 59, at 510 (noting that “groups of members sharing common profiles and common interests … are better candidates for institutional and legal support than ad hoc issue-based coalitions”).

113 Abbott, Future of IPRs, supra note 110, at 42.

114 See Nath, supra note 44, at 49–61 (discussing the economic problems and reforms in India in the early 1990s).

115 See Peter K. Yu, A Tale of Two Development Agendas, 34 Ohio N.U. L. Rev. (forthcoming 2008).

116 For a discussion of collaborative initiatives between the BRIC countries, see Behrman, supra note 67, at 528–31.

117 See Yu, The International Enclosure Movement, supra note 7, at 842–43.

118 For a discussion of neglected diseases, see sources cited id. at 841–43.

119 See id. at 900 (noting the importance of exploring alternative proposals that “can be compatible with existing treatments in less developed countries, such as the use of traditional medicine”); Aginam, Obijiofor, From the Core to the Peripheries: Multilateral Governance of Malaria in a Multi-Cultural World, 3 Chi. J. Int’l L. 87, 93 (2002)Google Scholar (“Ethnomedical knowledge of plants by indigenous people across societies and cultures has ‘long served as [a] crucial source[] of medicines either directly as [a source of] therapeutic agents, as [a] starting point[] for the elaboration of more complex semi-synthetic compounds or as synthetic compounds.’”); Nanda & Lodha, supra note 96, at 586 (“In developing countries, up to 80 percent of the population relies on traditional medicine to meet its health-care needs. Such medicine is not only affordable, but it is also widely available and trusted.”).

120 For a comprehensive discussion of these regional initiatives, see Musungu et al., supra note 9.

121 Id. at 35–36.

122 Bird, Robert & Cahoy, Daniel R., The Impact of Compulsory Licensing on Foreign Direct Investment: A Collective Bargaining Approach, 45 Am. Bus. L.J. 283, 317 (2008)Google Scholar [hereinafter Bird & Cahoy, The Impact of Compulsory Licensing].

123 See Bird & Cahoy, The Emerging BRIC Economies, supra note 20, at 421 (footnote omitted).

124 For a detailed assessment of the participation of Brazil and India in the WTO dispute settlement process, see Davey, William J., The WTO Dispute Settlement System: The First Ten Years, 8 J. Int’l Econ. L. 17, 40–45 (2005)Google Scholar [hereinafter Davey, WTO Dispute Settlement System].

125 See Request for Consultations by Brazil, United States—US Patents Code, WT/DS224/1 (Feb. 7, 2001).

126 See Request for Consultations by the United States, Brazil—Measures Affecting Patent Protection, WT/DS199/1 (June 8, 2000).

127 See Panel Report, India—Patent Protection for Pharmaceutical and Agricultural Chemical Products, WT/DS50/R (1997); Panel Report, India—Patent Protection for Pharmaceutical and Agricultural Chemical Products, WT/DS79/R (1998).

128 See Request for Consultations by the United States, China—Measures Affecting the Protection and Enforcement of Intellectual Property Rights, WT/DS362/1 (Apr. 16, 2007).

129 TRIPs Agreement, supra note 2, art. 66(2).

130 Cho, supra note 52, at 226 (emphasis omitted).

131 See Abbott, Frederick M., The WTO Medicines Decision: World Pharmaceutical Trade and the Protection of Public Health, 99 Am. J. Int’l L. 317, 334 (2005)Google Scholar [hereinafter Abbott, WTO Medicines Decision].

132 Council for Trade-Related Aspects of Intellectual Prop. Rights, Communication from Kenya, the Coordinator of the African Group, Elements of a Paragraph 6 Solution, IP/C/W/389, ¶ 15(a) (Nov. 14, 2002).

133 Cf. Abbott, WTO Medicines Decision, supra note 131, at 334.

134 As discussed below, nongovernmental organizations in developed countries may serve similar functions. However, from the standpoint of domestic policymaking, a push by domestic constituencies is usually more persuasive than a push by nongovernmental organizations headquartered outside the country.

135 Rovira, supra note 85, at 235.

136 See id.

137 't Hoen, supra note 22, at 32.

138 See Fred Bergsten, C. et al., China: The Balance Sheet: What the World Needs to Know Now About the Emerging Superpower 114 (2006)Google Scholar.

139 See Jim Yardley, Indian Leader in China Urges Closer Ties, N.Y. Times, Jan. 16, 2008, at A8. For interesting discussions of Indo-China relations, see Jairam Ramesh, Making Sense of Chindia: Reflections on China and India (2006); Waheguru Pal Singh Sidhu & Jing Dong Yuan, China and India: Cooperation or Conflict? (2003).

140 Alden, supra note 73, at 8.

141 See Joshua Kurlantzick, Charm Offensive: How China's Soft Power Is Transforming the World (2007).

142 For a discussion of China's activities in Africa, see Chris Alden, China in Africa (2007); Harry G. Broadman, Africa's Silk Road: China and India's New Economic Frontier (2007).

143 Alden, supra note 73, at 8.

144 As one commentator noted: “China … appears to be developing an interesting strategy consisting of pressing for regional free trade agreements, not so much as a way to improve its bargaining capacity, but rather to foster its case for market economy status, a crucial element in anti-dumping actions.” Rolland, supra note 59, at 498.

145 Rolland, supra note 59, at 483; accord Narlikar, supra note 77, at 2 (noting that “GATT officials reiterated the operation of ‘consensus’-based decision-making procedures, and refused to acknowledge the existence of some well-entrenched coalitions”).

146 Rolland, supra note 59, at 503.

147 See, e.g., Louise Amoore et al., Series Preface to Narlikar, supra note 77, at xiii (noting that the launch of the Doha Round was “assisted to a large degree by the conciliatory international political climate that followed the September 2001 terrorist attacks in New York and Washington”).

148 Symposium, The International Intellectual Property Regime Complex, 2007 Mich. St. L. Rev. 1.

149 See Benvenisti, Eyal & George W.|Downs, The Empire's New Clothes: Political Economy and the Fragmentation of International Law, 60 Stan. L. Rev. 595 (2007)Google Scholar.

150 See Yu, International Enclosure, the Regime Complex, supra note 50, at 17–18.

151 See Yu, TRIPS and its Discontents, supra note 77, at 403.

152 Zoellick, Robert B., America Will Not Wait for the Won’t-Do Countries, Fin. Times (London), Sept. 22, 2003, at 23Google Scholar.

153 See Yu, Currents and Crosscurrents, supra note 35, at 413.

154 Watal, supra note 23, at 18 (footnote omitted).

155 Drahos, Developing Countries, supra note 73, at 774.

156 Id.

157 See Becker, supra note 25; The Cancun Failure, supra note 25.

158 See Yu, Currents and Crosscurrents, supra note 35, at 392–400 (discussing the growing use of bilateral and regional trade agreements).

159 Cho, supra note 52, at 238 (footnote omitted); see also Braithwaite, John, Methods of Power for Development: Weapons of the Weak, Weapons of the Strong, 26 Mich. J. Int’l L. 297, 313 (2004)Google Scholar (noting that bilateral trade agreements “progressively lock more States into the preferred U.S. multilateral outcome until the point is reached where the United States can attempt to nail that multilateral agenda again”); Okediji, Ruth L., Back to Bilateralism? Pendulum Swings in International Intellectual Property Protection, 1 U. Ottawa L. & Tech. J. 127, 143 (2004)Google Scholar (noting that “multilateral efforts to harmonize intellectual property norms should be anticipated by developing countries once the network of bilateral agreements is sufficiently dense to warrant a mechanism to consolidate and (perhaps improve) the gains from bilateralism”); Rolland, supra note 59, at 519 (“Regionalism is sometimes seen as a stepping stone toward multilateralism; given institutional and economic difficulties in developing countries such an intermediate step could be highly beneficial to the improved integration of these members in the WTO.”).

160 Baucus, Max, A New Trade Strategy: The Case for Bilateral Agreements, 22 Cornell Int’l L.J. 1, 21–22 (1989)Google Scholar.

161 Id. at 22.

162 Rolland, supra note 59, at 497. Nevertheless, there has been growing recognition of groups within the WTO. As Amrita Narlikar noted: “More recently, the Doha Development Agenda made explicit references to groups such as Small and Vulnerable Economies group and the LDC group. References to coalitions such as the Cairns Group and the ASEAN can be easily found on the WTO website.” Narlikar, supra note 77, at 52.

163 Musungu et al., supra note 9, at xiv.

164 Coleman, William D. & Underhill, Geoffrey R.D., Introduction: Domestic Politics, Regional Economic Co-operation, and Global Economic Integration, in Regionalism and Global Economic Integration: Europe, Asia and the Americas 1, 1 (Coleman, William D. & Underhill, Geoffrey R.D. eds., 1998)Google Scholar.

165 Narlikar, supra note 77, at 155.

166 Cho, supra note 52, at 238.

167 Id. at 235.

168 Hurrell, Andrew & Narlikar, Amrita, A New Politics of Confrontation? Brazil and India in Multilateral Trade Negotiations, 20 Global Soc’y 415, 424 (2006)Google Scholar.

169 See Alden, supra note 73, at 29.

170 Internet Corp. for Assigned Names & Numbers, Uniform Domain-Name Dispute-Resolution Policy (Aug. 26, 1999), http://www.icann.org/udrp/udrp.htm.

171 See Yu, Peter K., Five Disharmonizing Trends in the International Intellectual Property Regime, in 4 Intellectual Property and Information Wealth: Issues and Practices in the Digital Age 73, 88–91 (Yu, Peter K. ed., 2007)Google Scholar (including the creation of non-national systems as a response to Internet disputes as one of the five disharmonizing trends in the international intellectual property regime).

172 Shaffer, Recognizing Public Goods, supra note 29, at 479; see also Antonio Ortiz Mena L.N., Getting to “No:” Defending Against Demands in NAFTA Energy Negotiations, in Negotiating Trade, supra note 22, at 177, 212 (noting the need to “[e]xploit opportunities offered by [the negotiating] partner's political system to monitor and change its negotiating positions”); J.P. Singh, The Evolution of National Interests: New Issues and North-South Negotiations During the Uruguay Round, in Negotiating Trade, supra note 22, at 41, 47 (noting that “divisions in the ranks of the domestic constituencies of the North can be exploited by developing countries to their benefit or can make effective agenda-setting and coalition-building difficult for the North”).

173 Shaffer, Recognizing Public Goods, supra note 29, at 480; see also Cho, supra note 52, at 240 (noting that the support less developed countries obtain from international and nongovernmental organizations “is likely to have a ripple effect even in the domestic political realm”).

174 Shaffer, Recognizing Public Goods, supra note 29, at 481.

175 Id. at 479–80.

176 Narlikar, supra note 77, at 4.

177 See Yu, From Pirates to Partners I, supra note 46, at 219 (noting the need to provide “regular training programs that provide the basic understanding of intellectual property rights and general expertise in the drafting, implementation, and enforcement of intellectual property laws … [and] advanced seminars that help people keep pace with the new legal and technological developments in the country and abroad”).

178 Odell & Sell, supra note 22, at 87.

179 Braithwaite, John & Drahos, Peter, Global Business Regulation 576 (2000)CrossRefGoogle Scholar.

180 Barbara Rosenberg, Market Concentration of the Transnational Pharmaceutical Industry and the Generic Industries: Trends on Mergers, Acquisitions and Other Transactions, in Negotiating Health, supra note 83, at 65, 76.

181 See Shaffer, supra note 29. at 481.

182 See Musungu et al., supra note 9, at 77.

183 See Drahos, Peter, “Trust Me”: Patent Offices in Developing Countries, 34 Am. J.L. & Med. 151 (2008)Google Scholar.

184 See Davey, WTO Dispute Settlement System, supra note 124, at 17 (“The first half of [the first ten years of operation of the WTO dispute settlement process]—from 1995 through 1999—was characterized by extensive use of the system by the United States initially, and later by the EU.”); id. at 24 (noting that “the US and the EC no longer were as dominant as complainants in the system” and that “developing country use of the system increased dramatically” in the second half of the first decade of operation of the WTO dispute settlement process).

185 Shaffer, Recognizing Public Goods, supra note 29, at 477; see also Christina L. Davis, Do WTO Rules Create a Level Playing Field? Lessons from the Experience of Peru and Vietnam, in Negotiating Trade, supra note 22, at 219, 220 (arguing that “the use of legal adjudication allows developing countries to gain better outcomes in negotiations with their powerful trade partners than they could in a bilateral negotiation outside of the institution”).

186 Id. at 470.

187 Panel Report, Canada—Patent Protection of Pharmaceutical Products, WT/DS114/R (Mar. 17, 2000).

188 Id. ¶ 7.26.

189 Abbott, Frederick M., Bob Hudec as Chair of the Canada—Generic Pharmaceuticals Panel—The WTO Gets Something Right, 6 J. Int’l Econ. L. 733, 736 (2003)Google Scholar.

190 See Yu, From Pirates to Partners II, supra note 49, at 939–40.

191 See Panel Report, United States—Section 110(5) of the U.S. Copyright Act, WT/DS/160/R (June 15, 2000).

192 Report of the Appellate Body, United States—Section 211 Omnibus Appropriations Act of 1998, WT/DS176/AB/R (Jan. 2, 2002).

193 See Panel Report, United States—Sections 301–310 of the Trade Act of 1974, WT/DS152/R (Dec. 22, 1999).

194 Panel Report, United States—Measures Affecting the Cross-Border Supply of Gambling and Betting Services, WT/DS285/R (Nov. 10, 2004).

195 Recourse to Arbitration by the United States Under Article 22.6 of the DSU, United States—Measures Affecting the Cross-Border Supply of Gambling and Betting Services, ¶ 3.189, WT/DS285/ARB (Dec. 21, 2007).

196 Paragraph 5 of the Doha Declaration specifically recognizes the following flexibilities:

• a. In applying the customary rules of interpretation of public international law, each provision of the TRIPS Agreement shall be read in the light of the object and purpose of the Agreement as expressed, in particular, in its objectives and principles.

• b. Each member has the right to grant compulsory licences and the freedom to determine the grounds upon which such licences are granted.

• c. Each member has the right to determine what constitutes a national emergency or other circumstances of extreme urgency, it being understood that public health crises, including those relating to HIV/AIDS, tuberculosis, malaria and other epidemics, can represent a national emergency or other circumstances of extreme urgency.

• d. The effect of the provisions in the TRIPS Agreement that are relevant to the exhaustion of intellectual property rights is to leave each member free to establish its own regime for such exhaustion without challenge, subject to the MFN and national treatment provisions of Articles 3 and 4.

Doha Declaration, supra note 3, ¶5.

197 Shaffer, Recognizing Public Goods, supra note 29, at 473.

198 See id. at 472 (“When large developed countries, such as the United States and EC, can absorb high litigation costs by dragging out a WTO case, while imposing them on developing country parties, they can enhance developing countries’ incentives to settle a dispute unfavorably.”).

199 See Yu, TRIPS and Its Discontents, supra note 77, at 372. For a discussion of the bargaining narrative concerning the origins of the TRIPs Agreement, see id. at 371–73.

200 Shaffer, Recognizing Public Goods, supra note 29, at 465.

201 See id. at 475 (“Because of developing countries’ less frequent use of the WTO system and their lack of local legal capital, the alternative for a developing country to train internal lawyers with WTO expertise is typically worse than hiring expensive US or European outside legal counsel.”).

202 See id.

203 See id. at 474.

204 See id. at 470.

205 See id.

206 Davey, William J., Dispute Settlement in GATT, 11 Fordham Int’l L.J. 51, 71 (1987)Google Scholar.

207 See Yu, From Pirates to Partners II, supra note 49, at 945.

208 Davey, Dispute Settlement in GATT, supra note 206, at 90.

209 Id. at 102; see also Rolland, supra note 59, at 544 (noting that “one of the problems often mentioned with respect to the WTO's dispute settlement procedure is the insufficient leverage of developing countries at the enforcement level due to their limited potential for trade countermeasures against large economies”).

210 See Shaffer, Recognizing Public Goods, supra note 29, at 478 (“Regional centers could create benchmarks for policy, provide a forum for the sharing of experiences, and identify best practices. Regional centers could also better coordinate training of developing country officials and non-governmental representatives.”); accord Musungu et al., supra note 9, at xiv–xv (noting the need to develop mechanisms that serve “as a central feature of an institutionalized approach to regional research and innovation including essential health research and, in particular, as a focal point for training, research, information exchange and political coordination in the use of TRIPS flexibilities for public health promotion and protection”); Narlikar, supra note 77, at 206 (noting “the significance of a sustained process that allows coalition members to meet frequently and further develop and revise their agenda”).

211 Rolland, supra note 59, at 499.

212 Odell, supra note 78, at 16.

213 See id. at 501 (“A common agenda may not exist in a form strong enough to provide a platform for negotiations with third parties but a discussion group may help bring participants’ positions closer or assist in overcoming negotiation deadlocks.”).

214 Narlikar, supra note 77, at 14.

215 See Rolland, supra note 59, at 512.

216 Id.

217 McGinnis, John O. & Movsesian, Mark L., The World Trade Constitution, 114 Harv. L. Rev. 511, 557 n.256 (2000)Google Scholar.

218 See Shaffer, Gregory C., The World Trade Organization Under Challenge: Democracy and the Law and Politics of the WTO's Treatment of Trade and Environment Matters, 25 Harv. Envtl. L. Rev. 1, 62–63 (2001)Google Scholar.

219 See Narlikar, supra note 77, at 15.

220 See Rolland, supra note 59, at 529 (noting that “in practice [the participation of member states in WTO working groups] would largely be constrained by the member's institutional capacity and delegation size”).

221 Shaffer, Recognizing Public Goods, supra note 29, at 478.

222 Rolland, supra note 59, at 507 (footnotes omitted).

223 As the Trade Act of 2002 stated:

19 U.S.C. § 3802(b)(4)(A)(i)(II) (2004).

224 See Correa, Carlos M., Bilateralism in Intellectual Property: Defeating the WTO System for Access to Medicines, 36 Case W. Res. J. Int’l L. 79, 93 (2004)Google Scholar; Yu, Peter K., Anticircumvention and Anti-Anticircumvention, 84 Denv. U. L. Rev. 13, 41 (2006)Google Scholar.

225 See Yu, TRIPS and Its Discontents, supra note 77, at 407.

226 Yu, Peter K., Toward a Nonzero-Sum Approach to Resolving Global Intellectual Property Disputes: What We Can Learn from Mediators, Business Strategists, and International Relations Theorists, 70 U. Cin. L. Rev. 569, 625–26 (2002)Google Scholar [hereinafter Yu, Toward a Nonzero-sum Approach] (citations omitted).

227 See Panel Report, European Communities—Protection of Trademarks and Geographical Indications for Agricultural Products and Foodstuffs, WT/DS174/R (Mar. 15, 2005).

228 See Watal, supra note 23, at 23 (noting that the European Communities began to root for a GATT treaty “perhaps after a decision among developed countries to include the subject of geographical indications”).

229 See Shaffer, Recognizing Public Goods, supra note 29, at 478.

230 Rolland, supra note 59, at 505.

231 Id. at 485.

232 Narlikar, supra note 77, at 122–23.

233 See id. at 128–47 (discussing the rise, success, and limitations of the Cairns Group); see also Rolland, supra note 59, at 491 (“The Cairns Group gained significant weight leverage during the round, leverage which has endured because it brought together developed and developing countries that were likely to help bridge the gap between the most extreme negotiating positions.”).

234 Narlikar, supra note 77, at 8.

235 For an explanation of the success of the coalitions less developed countries built at the Cancún Ministerial, see Narlikar, Amrita & Tussie, Diana, The G20 and the Cancun Ministerial: Developing Countries and Their Evolving Coalitions in the WTO, 27 World Econ. 947 (2004)Google Scholar.

236 Thanks to Robert Bird and Dan Cahoy for pushing me to focus on this important question.

237 Drahos, Developing Countries, supra note 73, at 765.

238 As Amrita Narlikar noted:

Narlikar, supra note 77, at 16.

239 Halbert, supra note 58, at 267.

240 Id. at 267–68.

241 I suspect, however, that these manufacturers would be unlikely to achieve as much success and influence as their patent-based counterparts in the developed world. For a discussion of why the BRICS alliances are conductive to technology transfer from the BRICS countries to other less developed countries, see supra text accompanying supra note 134.

242 Rangnekar, Dwijen, Context and Ambiguity in the Making of Law: A Comment on Amending India's Patent Act, 10 J. World Intell. Prop. 365, 379–80 (2007)Google Scholar (quoting Commission on Intellectual Property Rights, Notes on the India Field-Trip (2001) (citation omitted)).

243 Nath, supra note 44, at 102.

244 Rolland, supra note 59, at 536.

245 See, e.g., Chindia: How China and India Are Revolutionizing Global Business (Pete Engardio ed., 2006) [hereinafter Chindia]; Ramesh, supra note 139; see also Dancing with Giants, supra note 103; Meredith, supra note 106.

246 See Meredith, supra note 106, at 160 (citing Angus Maddison, professor emeritus at the University of Groningen); see also Angus Maddison, Historical Statistics for the World Economy: 1–2003 AD (2007), http://www.ggdc.net/maddison/Historical_Statistics/horizontal-file_03-2007.xls.

247 Bergsten et al., supra note 138, at 18. Some early research has placed China's annual growth rate at a more modest rate of seven to eight per cent. See Symposium, China and the WTO, supra note 45, at 3.

248 Bergsten et al., supra note 138, at 73.

249 See id. at 4.

250 Wilson & Purushothaman, supra note 13, at 4.

251 See Chow, Daniel C.K., Why China Does Not Take Commercial Piracy Seriously, 32 Ohio N.U. L. Rev. 203, 208 (2006)Google Scholar (“China's ambitions are vast: China seeks to maintain its dominance in labor-intensive sectors, to gain and maintain dominance in low-technology sectors, and to eventually dominate trade in high-technology sectors.”); Pete Engardio, Introduction to Chindia, supra note 245, at 4 (noting that “[t]he idea that China will continue to assemble low-end products while high-end manufacturing will always remain in advanced countries … is becoming outdated”); Peter K. Yu, Trade Barriers Won't Contain China's Cars, Detroit News, Oct. 25, 2007, at 15A (discussing China's growing interest in the American car market and its eagerness to set up “its own national champion automaker”).

252 Wilson & Purushothaman, supra note 13, at 4.

253 Id. at 10.

254 See Pete Engardio, Why India May Be Destined to Overtake China, in Chindia, supra note 245, at 27; see also Meredith, supra note 106, at 57 (“China is winning the sprint, and [India is] going to win the marathon.” (quoting Kamal Nath, India's minister of commerce and industry)). But see id. at 154 (“China has proved so much more efficient than India at development and managing its economy that th[e] scenario [that India's economy will overtake China’s] is unlikely unless China falls into political turmoil.”).

255 Yasheng Huang & Tarun Khanna, Can India Overtake China?, Foreign Pol’y, July/Aug. 2003, at 74, 81.

256 “IP-irrelevant factors” are those factors that are largely unaffected by intellectual property protection. See Yu, The International Enclosure Movement, supra note 7, at 852–53.

257 Cf. Rolland, supra note 59, at 524 (suggesting the development of the following geographical-based groups: “a bloc including the Americas, an African bloc, two Asian groups (one including China and Eastern Asian countries and the other one comprising South Asian and Central Asian countries), and a Middle Eastern bloc, and possibly a bloc of industrialized members and an LDC bloc”).

258 Yu, Toward a Nonzero-sum Approach, supra note 226, at 599 (footnotes omitted).