Cooperation, Harmonization and an Institutional Analysis of WIPO and the WTO
Chapter 5: International Patent Cooperation as Collective Action
This chapter provides a background on collective action and international law, and then relates this to the preceding discussion of the international patent system, analyzing the prognoses for collective action in international patent law. International cooperation may be viewed as collective action to provide public goods. By analyzing the types of public goods being provided, the problem of their collective provision may be related to an underlying form of game. Consideration of the type of game yields a prognosis for the likelihood of successful international collective action. However, this is only a first step, and recognition of the type of game does not prescribe a formula for encouraging international collective action. Many details will heavily influence the prognosis for successful collective action. Sandler provides examples of transnational public goods (control of ozone-depleting substances and control of greenhouse gases) that follow the same underlying game but have had very different levels of success at international cooperation.1 As he writes: Nevertheless, public good properties are not always sufficient for the proper assessment of global collective action: two public goods may possess virtually identical properties of publicness, yet may have quite different collective action prognoses . . . The key insight is to know when to generalize and when to discriminate among collective action issues. As such, political, strategic, temporal, institutional, and other considerations play a role.2 The characterization of the underlying game depends upon three “publicness” aspects of the good in question.3 First, the benefit rivalry of the good, that is whether the good can...