Technology & Innovation
November 19, 2013

TRIPS At 20: Patenting, Public Health, and an Agreement That’s Working

By Edward Gresser

Mark Twain – comedian, close observer of race relations, anti-militarist – was also a gadget-lover and intellectual property enthusiast. Himself the holder of three patents, Twain used Hank Morgan, the titular “Yankee” in A Connecticut Yankee in King Arthur’s Court (1889), to argue for intellectual property laws as a foundation for development:

“The very first official thing I did, in my administration—and it was on the very first day of it, too—was to start a patent office; for I knew that a country without a patent office and good patent laws was just a crab, and couldn’t travel anyways but sideways or backways.”

Twelve decades later, Twain seems to have won his point. Most of the world has signed up to his vision through the WTO’s Agreement on Trade-Related Aspects of Intellectual Property, dating to 1995 and known as “TRIPS” for short, which sets patent, copyright, and other intellectual property standards for WTO members. It now applies in 134 countries and territories, including all the world’s major nations.

But the argument is not over. In practical policy, a series of Indian decisions to cancel or revoke patents on six medicines recently invented in European and American labs poses the strongest challenge to the TRIPS system in many years. The eminent economist Joseph Stiglitz provides intellectual backing for such decisions, portraying intellectual property in general and patenting in particular as devices to delay rather than promote development, and to do so in a remarkably callous way:

“[T]he U.S. and other advanced countries have been pressing for stronger intellectual property regimes around the world. Such regimes would limit poor countries’ access to the knowledge that they need for their development—and would deny life-saving generic drugs to the hundreds of millions of people who cannot afford the drug companies’ monopoly prices.”

Thus the question: Was Twain right to believe a ‘strong’ system of worldwide intellectual property rights, obligations, and incentives will accelerate development and improve life? Or is Stiglitz correct in arguing for a ‘weak’ system in which the absence of IPR law speeds poor countries’ technological advance and gets them medicines they would otherwise miss?

This essay asserts that Twain remains the better guide. Intellectual property has limits internationally as in domestic law. Policy at times must be creative to meet emergencies and unusual circumstances. But TRIPS and its implementation have been able to handle these challenges. And when measured against the most important indicators – the pace of research, the retreat of poverty, and the improvement of health in poor countries as well as rich – the agreement looks like a success.

Full text at: