A variety of arguments have justified the progressive march of global patent harmonization, such as the importance of non-discrimination against foreigners which featured heavily in the earliest efforts to establish an international system for patent protection; the role of patents in technology transfer which, during the 70’s and 80’s, became a divisive issue as developing countries sought to assess the efficacy of patent protection for economic development; and promoting trade in knowledge goods as represented by the TRIPS Agreement. These ostensibly salutary reasons mask deeply problematic consequences of patent harmonization for national economic growth and development. Patent harmonization extracts systemic and pervasive welfare costs from technology-dependent countries, and can be used to disguise or defend government capture by special interests to the detriment of national welfare priorities. In its current incarnation, patent harmonization has a tendency to penalize practical exercises of state power in pursuit of national development. But in the end, justifications for patent harmonization reflect principally the astounding evolutionary process of a single effort: the protection of export markets for technology exporting countries. None of the prevailing arguments for global patent harmonization directly address the role of patents in national innovation policy, in ensuring the supply of public goods, nor consider whether or how the norms selected as a basis for harmonization fit within a broader public law framework. This chapter explores the implications and consequences of these harmonization “gaps.” These gaps, it is argued, represent important elements of a canon which future efforts at international patent cooperation must explicitly accommodate, or face continual crises of legitimacy that engender new, dynamic forms of resistance to global patent norms.
Ruth Okediji is the William L. Prosser Professor of Law at the University of Minnesota.