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34 - WTO Dispute Resolution and the Preservation of the Public Domain of Science under International Law

Published online by Cambridge University Press:  05 May 2010

Graeme B. Dinwoodie
Affiliation:
Professor of Law, Chicago-Kent College of Law
Rochelle Cooper Dreyfuss
Affiliation:
Professor of Law, New York University School of Law
Keith E. Maskus
Affiliation:
University of Colorado, Boulder
Jerome H. Reichman
Affiliation:
Duke University, North Carolina
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Summary

ABSTRACT

The TRIPS Agreement can be read to reflect a static view of the structure of intellectual property law. In this chapter, we address whether – and how – the TRIPS Agreement can be interpreted to give it 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 U.S. 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 Members to keep their laws attuned to the developments and needs of science. 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.

Introduction

The size and content of a rich public domain are affected by a constellation of national intellectual property rules: provisions that define protectable subject matter, establish threshold requirements for protection, delineate the scope of the rights awarded, create defenses and exemptions from liability, and set remedies for infringement.

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