Jack Balkan, in addressing the Yale A2K conference, gives a nice perspective on what our approach to intellectual property should be:
"It is not surprising that intellectual property has become central to the movement for A2K. Intellectual property is a tool of knowledge and information policy. It is one method among many others for promoting knowledge and information production and diffusion. But intellectual property can promote or inhibit access to knowledge depending on how it is designed and implemented.
Intellectual property should serve the functions of knowledge and information policy-- information production and diffusion-- and democratic culture. And not the other way around. A2K is the Boss. IP is just one of the employees.
The nations of the world need to know who is the boss...
European Court of Human Rights says that countries are entitled to a "margin of appreciation" in how they enforce European human rights law...
If a country gets a margin of appreciation in its enforcement of human rights conventions, why shouldn't it get a similar margin of appreciation in enforcing its obligations under TRIPS?
Let me let you in on a little secret. The United States has for years insisted that it complies with the Berne Convention, which, as you know, recognizes moral rights. But in the United States, we do not have moral rights doctrines. What do our trade representatives say? We say we are in compliance with Berne because our copyright law is good enough to protect moral rights under our international obligations. What do you mean good enough? That is the margin of appreciation. And this is not an isolated example of how the United States interprets international trade and IP agreements to suit its own domestic concerns.
Why shouldn’t we apply the same logic, say, to India's TRIPS-compliant patent law? India shouldn't have to write a patent law identical to every other countries in order to be TRIPS compliant.
Note that I’m not talking about exceptions and limitations that the TRIPS treaty recognizes. I'm talking about the basic doctrines of patent law in a country. Counties in the South don't have to define the basic components of patent law in exactly the same way that the United States or the European Union does. They don’t have to have exactly the same factors that U.S. patent law does. And to the extent that the factors are the same, say non-obviousness and utility-- it doesn't have to define them the same way. A country in the South could say that it wants a somewhat greater showing of non-obviousness or utility before it will recognize a patent. It can also offer different burdens of proof. It can have different procedures for registering and challenging patents. It can offer slightly different remedies. It can have slightly different defenses, justifications and excuses. In fact, with respect to every single area of substantive definition, countries can have slightly different patent, trademark and copyright laws. That is what I mean by the IP equivalent of a margin of appreciation.
You might say, is this consistent with TRIPS? Yes it is, especially if TRIPS really is about lowering barriers to international trade as opposed to just being a method of extracting rents. One reason why India might want to have higher standards for novelty and utility is that it is very good at producing generic drugs or drug delivery devices. That is its comparative advantage. As long as its patent law is similar enough to patent laws in other countries, it serves the purposes of TRIPS, which is to promote innovation by securing basic IP protection around the world.
In fact, it might actually be a good idea if India's patent law had somewhat tougher proof requirements for novelty and utility. If drug companies in the U.S. are making comparatively minor improvements on drugs simply to extend their patents and prevent competition from generics one might well decide that this doesn't really further the goals of promoting and protecting innovation. What it actually does is promote and protect rents."
Balkan's group at Yale are working on the notion of margin of appreciation and how its application in civil rights law might apply in the intellectual property arena, research it would be well worth keeping abreast of.