Harmonization without Consensus: Critical Reflections on Drafting a Substantive Patent Law Treaty

Jerome H. Reichman, Duke University - School of Law, and Rochelle Dreyfuss, New York University - School of Law

8/13/2008
(Original Publish Date: 11/8/2007)

In this Article, we contend that the World Intellectual Property Organization's proposed Substantive Patent Law Treaty (SPLT) is premature. Developing countries are struggling to adjust to the heightened standards of intellectual property protection required by the TRIPS Agreement of 1994. With TRIPS, at least, these countries obtained side payments (in the form of trade concessions) to offset the rising costs of knowledge products. A free-standing instrument, such as the SPLT, would shrink the remaining flexibilities in the TRIPS Agreement with no side payments and no concessions to the catch-up strategies of developing countries at different stages of technological advancement.