Rebalancing TRIPS

Application of the World Trade Organization’s (WTO) dispute resolution procedures to the Agreement on Trade-Related Aspects of Intellectual Property (TRIPS Agreement) has provoked a variety of reactions over time. At its inception, the decision to enforce the treaty through the WTO’s dispute resolution process was widely viewed as a loss for developing countries. Many feared it would lead to an explosion of litigation against developing countries and cause distortions in domestic intellectual property (IP) policy making. More recent scholarship, however, has argued that these fears were unfounded. Few disputes before WTO panels have involved violations of the TRIPS Agreement, even fewer have been brought against developing countries, and none of those have authorized the withdrawal of trade concessions. This Article argues that the availability of adjudication through the WTO has indeed had significant consequences for the policy space of developing countries-just not in the manner initially imagined. Although the TRIPS Agreement has given rise to relatively few litigated cases overall, the threat of defending a costly complaint and the possibility of sanctions have contributed to a culture of overcompliance that has discouraged countries from experimenting with flexibilities protected under the treaty. Yet the problem of trade adjudication is not so much a problem of adjudication as it is of trade. Although the decision to link trade and intellectual property has transformed intellectual property discourse in a variety of ways, one of its most underappreciated consequences has been the conflation of trade and intellectual property jurisprudence in TRIPS dispute resolution. In an important case interpreting exceptions and limitations under TRIPS, the panel applied an interpretive approach drawn from trade cases that was fundamentally at odds with the structure and purpose of the TRIPS Agreement. The decision to subject intellectual property decision making to adjudication within the trade system has thereby led to overly restrictive interpretations that do not respect the intentions of the parties or the needs of intellectual property policy making. This Article proposes the use of a more deferential standard of review and a human rights presumption to remedy these overly restrictive interpretations. Panels should consider and respect the purposes states attempt to achieve through intellectual property regulation and should give greater presumptive weight to state policies that seek to fulfill human rights and protect human health and dignity. Additional deference to state priorities is appropriate given the object and purpose of the treaty and the nature of intellectual property regulation itself. Moreover, such deference is particularly important with respect to least developed countries. Several provisions of the WTO-covered agreements require special attention to the needs of least developed countries, and a deferential standard of review would be an important means of giving content to these terms.