An Organizational Approach to the Design of Patent Law

6 VERTINSKY FINAL_JAD (DO NOT DELETE) 2/27/2012 2:20 PM
2012] AN ORGANIZATIONAL APPROACH 269
property protection should “contribute to the promotion of
technological innovation and to the transfer and dissemination
of technology.” 244 This third principle in particular reflects the
fact that the TRIPS framework must accommodate countries
with very different needs and interests, and that its implementation
should reflect normative concerns such as access to
health. Many of the proposals for international patent policy
change take the form of proposed changes to the TRIPS framework,
such as efforts to build in expanded or restricted abilities
to use compulsory licensing and expanded or restricted definitions
of patentable subject matter. 245 The mechanisms for effecting
change in the rules and their enforcement are complex
and go beyond simple law-making processes. Moreover, a
change in the rules doesn’t go very far in changing behavior, as
demonstrated by the relative lack of utilization of the compulsory
licensing provisions fought for as part of the Doha Declaration.
246 Finally, it is difficult to connect the changes proposed
at the international level with implications for domestic patent
law and domestic innovation.
The organizational approach moves us beyond the view of
international patent law as simply a system of formal rules and
towards a view of the system as a set of both formal and informal
rules that are the product of the diverse relationships and
arrangements that shape the system’s development, adoption,
and economic impact. The organizational approach suggests
that a first step in more effective reform of international patent
law is to recognize the relative importance of informal rules in
international law-making, implementation, and enforcement.
Informal rules play a significant role in shaping international
law, and in determining how agreed upon rules are interpreted,
implemented, and enforced. 247 A variety of actors, both public
244. TRIPS Agreement, supra note 242, at 1200.
245. See generally Gervais, supra note 197 (analyzing the TRIPS agreement,
with particular emphasis on the impact intellectual property has on
economic activity).
246. See Amir Attaran, Assessing and Answering Paragraph 6 of the Doha
Declaration on the TRIPS Agreement and Public Health: The Case for Greater
Flexibility and a Non-Justiciability Solution, 17 EMORY INT’L L. REV. 743,
746–751 (2003).
247. See, e.g., Pitman B. Potter, Globalization and Business Regulation in
Local Context, in A GUIDE TO BUSINESS LAW IN ASIA 13–16 (Pitman B. Potter
& Ljiljana Biuković eds., 2008) (proposing a selective adaption paradigm
which addresses the implementation of international legal norms in the context
of local culture and legal traditions).