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 6: Institutional Analysis: WIPO and the WTO

Alexander Stack

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6. Institutional analysis: WIPO and the WTO Both the normative and positive perspectives – what should international institutions do to foster international cooperation, and what features actually drive the behaviour of institutions – should be kept in mind when considering international institutions. For example, it may be normatively desirable for an institution’s officials to facilitate cooperation by suggesting new approaches to cooperation, for instance suggesting specific clauses for agreements. However, this does not address the question of what suggestions an institution’s officials might be likely to make. From a positive perspective, a comprehensive understanding of the behaviour of institutions is complex and nuanced, less deterministic and more multi-stranded and messy.1 Trebilcock suggests looking to three factors that give an impetus to institutional behaviour: (a) the interests of various concerned interest groups; (b) ideas; and (c) the structure of regulation-making institutions. These are known as the “3-I” factors.2 They are intertwined, and to some extent it may be difficult to separate these factors. For example, structure can determine what interests have influence, and thus can also affect the ideas proposed by officials of an organization. In this chapter, ideas, interests and institutional structure are the primary framework used to analyze the behaviour of WIPO and the WTO. Regime theory is the normative framework against which this understanding of the behaviour of WIPO and the WTO is considered. 1 TWO INSTITUTIONS? ONE INSTITUTION? As argued earlier, there are two grounds for international cooperation in the patent field: the reciprocal recognition of patents, and cooperation...

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