20 Years Of TRIPS: Max Planck Launches Declaration On Patent Protection

The Max Planck Institute for Innovation and Competition has launched a Declaration on Patent Protection with the aim to “clarify some of the regulatory options states still retain under international law, in particular the TRIPS Agreement,” which turns 20 years old this year. 

The “Declaration on Patents Protection: Regulatory Sovereignty under TRIPS” was drafted in collaboration with 40 international patent scholars from 25 countries and under the auspices of the Max Planck Institute for Innovation and Competition. It was published for the 20^th anniversary of the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).

“Since it is not the patent but the market that creates innovation opportunities and provides for innovation rewards, patent protection must be neutral in its effects on competition,” the preface of the declaration states. Either under-protection or overprotection of patents “causes a distortion of competition in that it prevents an efficient allocation of market revenues according to the competitive performance of market actors,” it adds.

As states are being more and more bound by international, regional and bilateral agreements, it is considered that this leaves little policy space for pursuing national public interest goals. But according to the press release, this assertion is inaccurate, given that “international law permits many measures which are essential to a sustainable patent system.”

Analysing provisions of the TRIPS Agreement, the declaration attempts to identify flexibilities states have when interpreting these provisions in their national legislation. The text is composed of a section which further explains the content of the declaration and the declaration itself, which contains 12 sections.

Among them, in a general principles section, it states that TRIPS Agreement does not prevent states from adopting measures in order to ensure that competition is not restricted and that equally or more important public policies are not duly encumbered, if those measures are “necessary and reasonable in the light of the objectives pursued and the interests involved.”

Furthermore, the declaration considers that states can make differentiations in policymaking depending on the technology field concerned. The declaration then states that states still have the possibility to define terms and concepts such as invention or technical in nature, but also what constitutes a lack of novelty and an inventive step.

On the subject of compulsory licences, it considers that “Article 31 of the TRIPS Agreement does not limit the grounds on which a compulsory licence can be granted.”

The non-discrimination principle in Article 27 does not apply to Articles 30 and 31 as “the principle of in dubio mitius precludes an interpretation to that effect,” the consideration section adds. In dubio mitius is a “principle of restrictive interpretation of treaty obligations in deference to the sovereignty of states,” according to a 2009 paper by Christophe J. Larouer (link here).

Other parts of the Declaration on Patents concern scope of protection, exhaustion, exceptions to the scope of protection, government use, undisclosed information, enforcement, transit and criminal measures.