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Abstract
This article seeks to explain institutional change in international patent politics since the conclusion of the 1995 Agreement on Trade-Related Aspects of Intellectual Property Rights (trips). I argue that the distribution of interests in this issue area adheres to a sharp North–South distinction, and that the pursuit of largely incompatible and conflicting patent agendas by industrialised and developing countries, respectively, has led to the gradual emergence of an international patent regime complex. Focusing on trips-plus measures under various Free Trade Agreements, patent enforcement clubs and a range of UN organisations which have recently gained relevance for international patent politics, I show how the distribution of interests in this area has led to the development of two parallel and partially inconsistent international governance structures. I conclude that the distribution of interests explains the propensity of regime complexes towards stability and change, with institutional change being particularly pronounced when overlapping interests among revisionist actors enhance the prospects of collective action.
Notes
1. I understand ipp as patent-related rules as well as processes which may lead to the creation of such rules at the bilateral, plurilateral and multilateral levels, and which create rights and obligations for states in respect of their domestic patent legislation.
2. Raustiala and Victor, “The Regime Complex for Plant Genetic Resources.”
3. Keohane and Victor, “The Regime Complex for Climate Change”; and Orsini et al., “Regime Complexes.”
4. Koskenniemi and Leino, “Fragmentation of International Law?”; and van Asselt and Zelli, “Introduction.”
5. Raustiala and Victor, “The Regime Complex for Plant Genetic Resources,” 279.
6. Alter and Meunier, “The Politics of International Regime Complexity.”
7. Sell, “trips was Never Enough”; and Sell, “The Global ip Upward Ratchet.”
8. Muzaka, “Linkages, Contests and Overlaps,” 80–81.
9. Roffe and Spennemann, “The Impact of ftas.”
10. Helfer, “Regime Shifting”; Alter and Meunier, “Nested and Overlapping Regimes”; and Busch, “Overlapping Institutions.”
11. Helfer, “Regime Shifting,” 39.
12. Leebron, “Linkages,” 6.
13. Haas, “Why Collaborate?” 365.
14. Oberthür and Stokke, “Conclusions”; and Young, “Institutional Linkages.”
15. Muzaka, “Linkages, Contests and Overlaps.”
16. Weinstock Netanel, “Introduction.”
17. See Morse and Keohane, “Contested Multilateralism.”
18. Muzaka, “Linkages, Contests and Overlaps.”
19. Berger, “After the Third World?”
20. O’Neill, Building Better Global Economic brics; Carmody, “Another bric in the Wall?”; O’Neill et al., How Solid are the brics? and Lawson et al., “Beyond the brics.”
21. unctad, The Least Developed Countries Report 2012.
22. Narlikar and Tussie, “The G20 at the Cancun Ministerial”; and Keukeleire and Hooijmaaijers, “The brics and Other Emerging Power Alliances.”
23. Sell, “The Global ip Upward Ratchet.”
24. Muzaka, “Linkages, Contests and Overlaps.”
25. Sell, “trips was Never Enough,” 448.
26. wipo ip Statistics Data Center, Total Patent Applications (direct and pct national phase entries). Total count by applicant’s origin. February 27, 2014. http://ipstatsdb.wipo.org. The dramatic increase in Chinese patenting activity does not result exclusively from an increase in innovative capacities, but also from increased foreign direct investment, legal reforms and patent subsidies programmes. Xibao, “Behind the Recent Surge of Chinese Patenting.”
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29. Thach and Marsnik, “Patent Standards under trips.”
30. dnd Working Group, “Fatal Imbalance.”
31. ’t Hoen, “trips, Pharmaceutical Patents and Access to Essential Medicines.”
32. Brand et al., Conflicts in Environmental Regulation.
33. Mgbeoji, Global Biopiracy; Robinson, Confronting Biopiracy; and Shiva, Biopiracy.
34. etc Group, Putting the Cartel before the Horse.
35. Andersen, Governing Agrobiodiversity.
36. Fidler, “Indonesia’s Decision to Withhold Influenza Virus Samples”; and Sedyaningsih et al., “Towards Mutual Trust, Transparency and Equity.”
37. Kale and Little, “From Imitation to Innovation.”
38. Zylberberg et al., “Biotechnology in Brazil”; Niosi et al., “The International Diffusion of Biotechnology.”
39. Muzaka, “Linkages, Contests and Overlaps.”
40. Sell, “The Global ip Upward Ratchet.”
41. Horn et al., “Beyond the wto?”
42. Flynn et al., Public Interest Analysis of the US tpp Proposal, 20.
43. Morin, “Multilateralizing trips-plus Agreements.”
44. European Union, “Strategy for the Enforcement of Intellectual Property Rights.”
45. Jaeger, The EU Approach to ip Protection, 9–10.
46. Robinson and Gibson, “Governing Knowledge,” 1905.
47. El Said, “The European trips-plus Model.”
48. Third World Network, “The EU–India Free Trade Agreement.”
49. Sell, “trips was Never Enough.”
50. Seuba, “Intellectual Property in Preferential Trade Agreements,” 250–251.
51. Intellectual Property Watch, “Drug Seizures in Frankfurt Spark Fears of EU-wide Pattern.” June 5 2009. www.ip-watch.org. All shipments were subsequently released. See also Arkinstall et al., “The Reality Behind the Rhetoric.”
52. impact Terms of Reference, p.1.
53. Oxfam, Eye on the Ball, 37.
54. who South-East Asian Region, “searo Intervention,” May 21, 2011 at wha 64. http://www.ip-watch.org/weblog/wp-content/uploads/2011/05/SEARO-Intervention-on-SSFFC-WHA-64-As-delivered-May-11.pdf.
55. World Health Assembly Resolution 65.19, p. 30.
56. acta, Article 13, fn. 6. See also Mercurio, “Beyond the Text,” 376–377.
57. Médecins Sans Frontières, “A Blank Cheque for Abuse,” 2–3.
58. Li, wco secure.
59. Abbott and Reichman, “The Doha Round’s Public Health Legacy.”
60. de Beer, “Defining wipo’s Development Agenda.”
61. cbd Article 1. See also Rosendal, The Convention on Biological Diversity.
62. Frein and Meyer, Das abc des abs-Regimes; and Wallbott et al., “The Negotiations of the Nagoya Protocol.”
63. Andersen, Governing Agrobiodiversity.
64. Moore and Tymowski, Explanatory Guide, 1–6.
65. Andersen, Governing Agrobiodiversity, 110.
66. Cooper, “The International Treaty,” 9–11.
67. Gerstetter et al., “The International Treaty.”
68. World Health Assembly Resolution 56.27:2.2.
69. Intellectual Property Watch, “who Adopts ‘Most Important Document Since Doha’ on ip and Public Health.” May 29, 2008. http://www.ip-watch.org/2008/05/29/who-adopts-most-important-document-since-doha-on-ip-and-public-health/
70. Velasquez, The Right to Health and Medicines.
71. World Health Assembly Resolution 60.28:1.1.
72. Alter and Meunier, “The Politics of International Regime Complexity,” 17; and Raustiala and Victor, “The Regime Complex for Plant Genetic Resources,” 306.
73. Roffe and Spennemann, “The Impact of ftas.”
74. Cullet, “Intellectual Property Rights and Food Security.”
75. Alter and Meunier, “The Politics of International Regime Complexity”; and Biermann et al., “The Fragmentation of Global Governance Architectures.”
76. Keohane and Victor, “The Regime Complex for Climate Change.”
77. Oberthür and Stokke, “Conclusions”; and Colgan et al., “Punctuated Equilibrium in the Energy Regime Complex.”