Convenient Stalemates: Why International Patent Law Negotiations Continue Despite Deadlock

Abstract

For almost 30 years, industrialised, emerging and developing countries negotiate on a substantive patent law harmonisation under the umbrella of the World Intellectual Property Organization (WIPO). Although a common approach or at least some vague outlines of common ground seem beyond reach, all participants regularly agree on a continuation of the discussion process. Despite an incessant wheeling and dealing among delegates and WIPO officials, the only effect is that discussions still keep going on. In our paper, we draw on a synthesis of both neo-mercantilist and liberal institutionalist insights in order to explain the vibrant stalemate of substantive patent law harmonisation talks. We argue that WIPO's involvement in the negotiation process offers an incentive structure for states to continue negotiations even when a successful conclusion appears rather improbable or downright undesirable. WIPO officials do not necessarily oppose the alternative deployment of their resources and services, because national negotiators' tactics at least partially coincide with their own interests. The paper concludes with a summary of the major results and a discussion on their potential empirical and theoretical relevance for further studies.

Keywords:

• intellectual property
• international negotiations
• developing countries
• neo-mercantilism
• neo-institutionalism

Notes

The paper summarises the findings from two research projects funded by the Fritz Thyssen Foundation (Project No. 53240309) and the German Research Foundation (Project SFB 700-TP D7). Preliminary versions of the article were presented at a conference of the German Association for Political Sciences (DVPW Section of Political Economy, 10–11 September 2010, Zurich, Switzerland) and at the Workshop ‘Europeanisation of Innovation – Levels, Institutions and Procedures in the Governance of Research and IP Policies’ (Carl von Ossiezky University/University of Hamburg, 14–15 April 2011, Oldenbourg, Germany). We are deeply indebted to the participants of these conferences and their valuable input. Moreover, we would like to thank Susanne Lütz, Matthias Kranke, Christof Mauersberger, Ian Canaris, Charlotte Schöne (Free University of Berlin). We also wish to give thanks to the anonymous reviewers for their helpful comments.

Our empirical evidence is based on the analysis of WIPO proceedings, 259 semi-structured interviews, and personal talks during various meetings and conferences at the World Intellectual Property Organization (WIPO) in Geneva as well as during the course of project-related interviews in Munich, Brussels, New Delhi and Brasília from 2007 to 2011. All interview partners were ensured confidentiality by not revealing individual names or other information that might endanger their anonymity.

European patent policies are coordinated by the European Patent Organization (EPO), an intergovernmental organisation outside the EU. However, the EPO secretariat is not entitled to negotiate on its member states' behalf. Although EPO (and also European Commission) representatives participate at WIPO negotiations, only national delegates from each single state are endowed with formal voting rights.

Apart from Brazil and Argentina, the following countries take part in the alliance: Bolivia, Cuba, Dominican Republic, Ecuador, Egypt, Iran, Kenya, Peru, Sierra Leone, South Africa, Tanzania and Venezuela (WO/GA/31/11 Add 2004).

For a more detailed discussion on developing and industrialised countries' preferences, see, for example, Sell (2010b), Muzaka (2010).

The ‘America Invents Act’ (enacted on 16 September 2011) endorses a shift from the ‘first inventor’ to a ‘first inventor to file largely system’. However, the 12-month grace period has been largely maintained. Thus, the significant differences between the US and the European patent remain largely intact (IAM blog 2011).

However, the comparably high living expenses are often regarded as a limiting factor, at least for financially weaker actors (Interview 092 2010).

Most notably, the ‘access to knowledge’ (A2K) movement plays an important role, because the members of this rather loosely organised civil society organisation are in close contact with Geneva-based delegates, academic institutions in emerging economies, as well as with European and US law-makers.