International Patent Law
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International Patent Law

Cooperation, Harmonization and an Institutional Analysis of WIPO and the WTO

Alexander Stack

Alexander Stack analyzes international patent law institutions and harmonization from a global welfarist, rationalist perspective. Grounding his analysis in innovation theory and an examination of patent law and prosecution, the author employs tools from new institutional economics to explore when cooperation is welfare-enhancing and the design implications for international institutions.
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Chapter 3: Bases for Harmonization

Alexander Stack

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3. Bases for harmonization This chapter discusses why domestically welfare-maximizing states might wish to cooperate and harmonize aspects of patent law. These reasons counter the presumption that states should choose their patent laws to be domestically welfare-maximizing. Well-founded (and globally welfareenhancing) patent harmonization seeks a balance between the reasons for harmonization in this chapter and the reasons to value diversity. Three reasons for harmonization are identified: (a) the recognition of foreign patentees, (b) decreasing the duplication of efforts related to patent prosecution, and (c) self-motivated harmonization (discussing eliminating uncertainty between highly integrated economies as an example). 1 THE RECOGNITION OF FOREIGN PATENTEES As discussed earlier, there is no purely economic case for harmonization (or unification) of patent laws from an efficiency point of view. However, that simple analysis was non-strategic, and assumed that countries did not react to the patent policies of other nations. It did not take into account distributional concerns, particularly profit flows between countries (which are neutral from a global efficiency point of view), and political considerations arising from these profit flows and from diversity of preferences among citizens of different countries. Taking these factors into account provides a basis for why the international community of nations would cooperate in patent law, and eventually would prefer harmonizing to a set of minimum standards. Two sequential arguments are made: that cooperation leading to national treatment is desirable, and that in a world with national treatment, minimum standards are desirable. 1.1 National Treatment is Desirable Recall the discussion of...

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