TRIPS’ Rebound: An Historical Analysis of How the TRIPS Agreement Can Ricochet back against the United States

Harris, Donald P. | January 1, 2004

Recently, scholars and commentators around the world have reexamined the role intellectual property rights (IPRs) play in hindering or helping developing countries. These scholars have questioned the doctrine the IPRs help developing countries by promoting economic development, increasing foreign direct investment, stimulating domestic innovation, and improving access to new technologies, and have concluded that imposing “Western-styled” intellectual property regimes (e.g., the U.S. patent regime) on developing countries harms those countries. In particular, such regimes fail to bring any of the purported benefits, while they impose many costs, including preventing people from obtaining life-saving drugs. This Article argues that it is not simply IPRs that cause these problems but that it is the increased focus of intellectual property regimes on private interests rather than public interests. The Article examines the historical role that intellectual property has played in the United States and its contrasting role in the world community, as evidenced by the international intellectual property treaty (TRIPS).

The Article argues that the traditional role of U.S. patent policy was to advance the public interest, while the new role, now advanced by the United States , is to primarily advance private interests. This is perhaps understandable given the change in environment to a more advanced, interdependent global economy. Nevertheless, the new role severely distorts the traditional balance between public and private interests and should be reexamined to determine whether the intellectual property system still promotes the public good, i.e. is it good for society. The Article argues, as do the many scholars and commentators, that TRIPS and this new role harm developing countries; but, the Article goes further and argues that this new role also will have a rebound effect and harm the United States by, among other things, stifling innovation and withholding rather than disseminating knowledge. The rebound effect results from two factors. The first is that TRIPS will constrain the United States ‘ ability to tailor its intellectual property laws because TRIPS impinges upon U.S. sovereignty in this area. The second factor is that, as mentioned, TRIPS is inconsistent with traditional U.S. policy. The Article concludes by examining the harms caused to the United States and the reasons for such harms.