Us Efforts To Impose Trips-Plus Standards

Author:Stephanie Switzer
Position:LLB (Hons) QUB, currently an MPhil candidate at University College Dublin. The author would like to thank Fiona Marshall and Noel Hughes for their helpful comments. Any errors are the author's own
Pages:121-137
Cork Online Law R eview 2007 13
Switzer, US Effort s to Impose TRIPS-Plus
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US EFFORTS TO IMPOSE TRIPS–PLUS STANDARDS
Falling Down: Unilateral Enforcement of Intellectual Property Rights – A
Critical Analysis of United States efforts to impose TRIPS–plus standards
Stephanie Switzer*
A INTRODUCTION
The current stagnation of the Doha Round of multilateral trade talks is
juxtaposed against increasing criticism of the terms of WTO membership.
Central to this criticism is the Agreement on Trade–Related Aspects of
Intellectual Property Rights (TRIPS).1 Characterised as potentially disruptive
to the rights of WTO members to take measures to secure access to affordable
essential medicines2, the TRIPS Agreement has been heavily scrutinised by a
myriad of commentators ranging from human rights3 and development4
advocates to health charities.5
Despite this controversy, the United States appears determined to
secure ever–higher standards of intellectual property protection in the
international arena. Mercurio contends that developed countries did not
achieve all their goals in the negotiation of TRIPS.6 They have since shifted
their focus to bilateral/regional negotiations in order to increase the requisite
levels of international intellectual property protection. The three areas which
these negotiations have centred on are
(i) inclusion of new areas of intellectual property rights
(ii) implementation of more extensive levels or standards than that
available under TRIPS,
(iii) the elimination of flexibilities under TRIPS.7
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* LLB (Hons) QUB, currently an MPhil candidate at U niversity College Dublin. The aut hor
would like to than k Fiona Marshall and Noel Hughe s for their helpful comments. Any errors
are the author’s ow n.
1 Agreement on Tra de–Related Aspects of Intellectua l Property Rights, Apr. 15, 1994, The
Results of the Uru guay Round of Multilateral Trade Negotiations 320 [1999], 1869 U .N.T.S.
299, 33 I.L.M. 119 7 [1994] [“the Agreement”]
2 Abbott ‘TRIPS Le gality of Measures Taken to Addre ss Public Health Crises’ [2001] 7
Widener L. Symp. J. 71, & Mercurio, ‘TRIPS, Patent s and Access to Life–Saving Drugs in the
Developing World ’ (2004) 8 Marq. Intell. Prop. L. R ev. 211
3 McClellan ‘Tools for Success: The TRIPS Agreemen t and the Human Right to Essenti al
Medicine’ [2005] 12 Wash. & Lee J. Civ. Rts. & Soc. Just. 153
4 Bass ‘Implication s of the TRIPS Agreement for Deve loping Countries: Pharmaceutica l
Patent Laws in Br azil and South Africa in the 21st C entury’ [2002] 34 Geo. Wash. Int’ l L. Rev.
191
5 T’hoen, ‘TRIPS, P harmaceutical Patents, and Access to Essential Medicines: A long wa y from
Seattle to Doha’ av ailable online at http://www.acce ssmed.msf.org/up load/PressClips/.
6 Drahos ‘Expandin g Intellectual Property’s Empire: The Role of FTAs’ [2003] availab le at
www.grain.org.
7 Mercurio ‘TRIPS– plus Provisions in Regional Trad e Agreements’ in ‘Regional Trade
Agreements and th e WTO Legal System’, Oxford OU P [2006] 219
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The United States has employed a number of unilateral tools to
‘pressure’ other countries into the adoption of standards over and above those
provided under the TRIPS Agreement. The purpose of this article is to
examine the legal compliance of these unilateral pursuits by the United States
for ever higher intellectual property protection. Within it an analysis of the
circumstances leading to the conclusion of the TRIPS Agreement will be
presented. It will be argued that developing countries had little choice at the
time but to accept the terms of TRIPS. The pertinence of this negotiating
context will be discussed in relation to the current efforts of the United States
to pursue ever–higher standards of intellectual property protection.
With this in mind this article shall undertake three tasks. First, it will
review a number of the ‘tools’ employed by the United States to secure ever–
higher standards of intellectual property protection. Second, each of these
tools will be examined for compliance with United States’ international legal
obligations under its membership of the WTO. Third, suggestions for reform
will be proposed.
B CIRCUMSTANCES LEADING TO THE FORMATION OF THE TRIPS
AGREEMENT
The TRIPS Agreement is part of the legal discipline of the WTO. It
forms one of the so–called ‘covered agreements’ of the Organisation. Subject
to the rules on implementation of the TRIPS Agreement applicable to
developing8 and least–developed Members,9 all countries acceding to the
WTO must undertake to implement the provisions of the TRIPS Agreement.
The TRIPS Agreement establishes minimum levels of intellectual
property rights protection. These rights may be registered and enforced by
innovators and inventors on a country–by–country basis. Since the standards
instituted by TRIPS are merely minimum requirements, parties are entitled
under TRIPS Article 1 (1) ‘to implement in their law more extensive protection
than is required by this Agreement, provided that such protection does not
contravene the provisions of this Agreement.’
Prior to the commencement of negotiations on TRIPS in the mid–
1980s, the inclusion of intellectual property rights within the multilateral
trading system had rarely been mooted as an idea.10 However, subsequent to a
concerted lobby campaign by a coalition of developed world pharmaceutical,
software and entertainment companies,11 intellectual property protection
became part of the agenda for discussion at the Uruguay Round of multilateral
trade negotiations. These negotiations would eventually lead to the formation
of the World Trade Organisation. As Professor Susan Sells notes, intellectual
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8 supra n 1 Article 6 5
9 ibid Article 66
10 Santoro ‘Human Rig hts and Human Needs: Diverse M oral Principles Justifying Third
World Access to A ffordable HIV/AIDS Drugs’ [2005 ] 31 N.C.J. Int’l L. & Com. Reg. 92 3, 925
11 ] Sell, Private Power , Public Law: The Globalisation o f Intellectual Property Rights
(Cambridge CUP 2 003), alleging that twelve Americ an corporations were responsible for the
introduction of int ellectual property to multilateral trade negotiations.

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