Declaration on Patent Protection: Regulatory Sovereignty Under TRIPS

Authors

Reto Hilty
Matthias Lamping
Dan L. Burk
Carlos M. Correa
Peter Drahos
N. S. Gopalakrishnan
Henning Große Ruse-Khan
Annette Kur
Geertrui van Overwalle
Jerome Reichman, Duke Law SchoolFollow
Hanns Ullrich

Document Type

Article

Publication Date

2014

Keywords

patent protection, patent system, compulsory licence, legitimate interest, Trips agreement

Abstract

As a framework regulation for innovation markets, the patent system needs to be tailored to the innovation process, which it is supposed to serve, and to the competitive environment, within which it must operate. In order to ensure an efficient functionality of the patent system as an innovation policy tool, patent rights ought to be defined, justified and continually reconsidered by reference to their socio-economic benefits and costs.

Sovereign states should retain the discretion to adopt a patent system that best suits their technological capabilities as well as their social, cultural and economic needs and priorities, with the proviso that the exercise of such discretion must remain within the boundaries of international law. Taking into account the customary principles of interpretation of international law, this Declaration seeks to shed light on these boundaries. The purpose is to clarify the policy space that the ‘Agreement on Trade-Related Aspects of Intellectual Property Rights’ (TRIPS Agreement) leaves to national legislators and judicial authorities with regard to the implementation and administration of their patent systems.

Citation

Reto Hilty, Matthias Lamping, Dan L. Burk, Carlos M. Correa, Peter Drahos, N. S. Gopalakrishnan, Henning Große Ruse-Khan, Annette Kur, Geertrui van Overwalle, Jerome Reichman & Hanns Ullrich, Declaration on Patent Protection: Regulatory Sovereignty Under TRIPS, 45 IIC -- International Review of Intellectual Property and Competition Law 679-698 (2014)