Larry Helfer on Access to Medicines

Readers interested in the social justice concerns described in Monday's post may be interested in a book chapter that was recently posted by Professor Laurence Helfer: Pharmaceutical Patents and the Human Right to Health: The Contested Evolution of the Transnational Legal Order on Access to Medicines. Helfer is one of the leading scholars of international IP institutions; see, e.g., his classic work on regime shifting.

In this new chapter, he describes the collision of two "transnational legal orders" (TLOs): one focused on IP, and one on the right to health. He breaks down the history into three phases. In Phase 1 (pre-mid-1990s) the two TLOs "existed in relatively stable but distinct policy spaces." In Phase 2 (mid-1990s to 2000), the IP TLO rapidly expanded. Phase 3 (2000 to the present) has involved "a backlash against pharmaceutical patents and a campaign by developing countries and civil society groups to increase A2M [access to medicines]." In broad strokes, this account is probably familiar to many IP scholars, but for those interested in the detailed institutional dynamics behind this story, Helfer's chapter is well worth a read.

In related news, the pharmaceutical firm GlaxoSmithKline made headlines with its recent announcement that it will stop filing patents in 50 low-income countries and will grant licenses to generics manufacturers in another 35 lower-middle-income countries.

Patent Experimentalism

I haven't had much time for blogging recently because I've been writing and revising a new article, Patent Experimentalism, which I'll be presenting at IPSC on August 8. This is still a work in progress, so please send me your feedback and suggestions! Here is the current abstract:

15 Years of TRIPS Implementation

The Journal of Intellectual Property Law at the University of Georgia Law School hosted a conference in January called "15 Years of TRIPS Implementation: Intellectual Property Protection From a Global Perspective." Peter Yu (Drake Law), who organized the conference, presented TRIPS and Its Achilles' Heel. Yu examines "why the TRIPS Agreement fails to provide effective global enforcement of intellectual property rights" and "lessons that can be drawn from the continuous battle between developed and less developed countries over international intellectual property enforcement norms."

Edward Lee (Chicago-Kent Law) presented Measuring TRIPS Compliance and Defiance: The WTO Compliance Scorecard, which "proposes the tabulation of a TRIPS Compliance Scorecard measuring a country's attempt to correct any treaty violation that a WTO panel or the Appellate Body has found against the country. . . . Two alternative methods are offered – a simple and a complex score to track the violating country's response. Scorecards are computed for WTO countries under both methods; in both cases, the U.S. ends up with the lowest score in 2011."

The other papers presented don't appear to be online:

• Donald Harris (Temple Law), Evaluating the Success of TRIPS by Looking to Compulsory Licensing
• Sean Flynn (American University Washington College of Law), From TRIPS to ACTA: The Rise of the Enforcement Agenda
• Ruth Okediji (Minnesota Law), If WIPO Leads, Should the World Follow?: Decentralizing IP Norm-making Processes and the Norms That Result Therefrom
• Henning Grosse Ruse-Khan (Max Planck Institute for Intellectual Property, Competition and Tax Law), The International Law Relation Between TRIPS and Subsequent TRIPS-Plus Free Trade Agreements: Towards Safeguarding TRIPS Flexibilities?
• Susan Sell (George Washington), TRIPS Was Never Enough: TRIPS-Plus, ACTA, and the Trans-Pacific Partnership Negotiations