An Organizational Approach to the Design of Patent Law

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6 VERTINSKY FINAL_JAD (DO NOT DELETE) 2/27/2012 2:20 PM 270 MINN. J. L. SCI. & TECH. [Vol. 13:1 and private, participate in this process. 248 As Dinwoodie notes, the “shape of international intellectual property law is being determined by the interaction of numerous components of the system.” 249 There are multiple participants in norm creation: both domestic and international, public, and private. In some cases the norms may conflict with each other or with the established rules. Tensions also exist between uniform international norms and national autonomy. 250 A second step is to recognize the importance of limited institutional capacity in responding to formal and even informal rule changes. 251 Local practices, regulatory infrastructure, and local cultural norms are important factors in determining compliance with both formal and informal rules. The approach advocates concepts which take into account the limited institutional capacity of different countries and the different cultural and social norms through which formal rules are filtered. Notions of compliance, which capture both adoption of rules and the constraints on their implementation and enforcement, provide a useful conceptual framework for analysis. 252 Third, the organizational approach supports proposals for innovation in the organization of law making and enforcement. Current work in the interface of domestic and international patent law explores the need for mechanisms to accommodate national courts and national interests in international patent law making. 253 The administrative structure of international patent 248. Graeme B. Dinwoodie, The International Intellectual Property Law System: New Actors, New Institutions, New Sources, 10 MARQ. INTELL. PROP. L. REV. 205, 206 (2006). 249. Id. at 10. 250. Dinwoodie & Dreyfuss, TRIPS and the Dynamics of Intellectual Property Lawmaking, supra note 240, at 95–96. 251. See, e.g., SAMUEL WANGWE ET AL., CASE STUDY FOR STUDY 9: INSTITUTIONAL ISSUES FOR DEVELOPING COUNTRIES IN IP POLICY-MAKING, ADMINISTRATION AND ENFORCEMENT, UGANDA 12–14 (2002). (looking at the challenges of developing and implementing an IP system in Uganda in light of the obligations of the TRIPS framework). 252. See, e.g., Potter, supra note 247, at 12–13 (arguing that international law can acquire a variety of local meanings that require an understanding of the local history and culture in addition to knowledge of the domestic economy and laws). 253. See, e.g., Graeme B. Dinwoodie, The Architecture of the International Intellectual Property System, 77 CHI.-KENT L. REV. 993, 1010–13 (2002) (examining how the system of international IP lawmaking is changing and discussing the need for mechanisms to enhance the role of national courts that were historically largely excluded from lawmaking process); Graeme B.
6 VERTINSKY FINAL_JAD (DO NOT DELETE) 2/27/2012 2:20 PM 2012] AN ORGANIZATIONAL APPROACH 271 law becomes a central part of international patent policy under this approach. Dreyfuss and Dinwoodie argue that the process of international intellectual property law should be the primary focus of attention, and that new administrative structures are needed to guide the development of international intellectual property law. Internationalization of intellectual property law is seen as occurring quickly through the activities of multiple participants and the impact of global trade and digital technologies. Dreyfuss and Dinwoodie call for the recalibration of the balance between national and international norms through careful choice of institutional structures and gathering of information needed to make choices about international patent law fairly and consciously. 254 “Organizations such as the WTO and World Intellectual Property Organization (WIPO) evolve in response to the needs and interests of different stakeholders, with implications for both rule development and rule enforcement.” 255 E. PATENTS AND ENTREPRENEURSHIP The study of entrepreneurship and its determinants has been largely confined to disciplines other than law. A large and growing business literature supports the importance of entrepreneurship as a vehicle of economic progress and growth and explores the determinants of entrepreneurship and the variables that contribute to the success and failure of new ventures. But despite the importance of intangible assets in new business ventures and the role of ideas and control over these ideas in fueling entrepreneurship, the relationship between patents and entrepreneurship has received little attention from patent scholars. 256 If we agree that entrepreneurs play an important Dinwoodie, The Integration of International and Domestic Intellectual Property Lawmaking, 23 COLUM.-VLA J.L. & ARTS 307, 307–08 (2000). 254. See Dinwoodie & Dreyfuss, TRIPS and the Dynamics of Intellectual Property Lawmaking, supra note 240, at 95–97 (examining the extent to which TRIPs dispute resolution adequately accommodates the operation of each member’s political economy as it relates to intellectual property lawmaking). See generally Graeme B. Dinwoodie & Rochelle C. Dreyfuss, International Intellectual Property Law and the Public Domain of Science, 7 J. INT’L ECON. L. 431 (2004) (examining the scope for domestic responses to public domain in the face of international legal frameworks governing patent law). 255. See, e.g., Dinwoodie, supra note 248, at 207–10 (examining international norm creation by a wide range of institutions, both public and private, and the implications for the future development of the international IP system). 256. See Stuart J.H. Graham & Ted M. Sichelman, Why Do Start-Ups Pa-
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