Stuck in a patent policy rut: Considerations for trade agreements

International development debates of the last four decades have ascribed ever greater importance to intellectual property rights (IPRs). There has also been a significant effort on the part of the U.S. to encourage its trade partners to introduce and enforce patent law modeled after American intellectual property law. Aside from a discussion on the impact of patents on innovation, there are some important consequences of international harmonization regarding the obduracy of the terms of trade agreements.

The position of the State Department on patents when negotiating trade agreements has consistently been one of defending stronger patent protection. However, the high-tech sector is under reorganization, and the most innovative industries today have strong disagreements about the value of patents for innovation. This situation begs the question as to why the national posture on patent law is so consistent in favor of industries such as pharmaceuticals or biotech to the detriment of software developers and Internet-based companies.

The State Department defends this posture, arguing that the U.S. has a comparative advantage in sectors dependent on patent protection. Therefore, to promote exports, our national trade policy should place incentives for partners to come in line with national patent law. This posture will become problematic when America’s competitive advantage shifts to sectors that find patents to be a hindrance to innovation, because too much effort will have already been invested in twisting the arm of our trade partners. It will be hard to undo those chapters in trade agreements particularly after our trade partners have taken pains in passing laws aligned to American law.

Related to the previous concern, the policy inertia effect and inflexibility applies to domestic policy as much as it does to trade agreements. When other nations adopt policy regimes following the American model, advocates of stronger patent protection will use international adoption as an argument in favor of keeping the domestic policy status quo. The pressure we place on our trade partners to strengthen patent protection (via trade agreements and other mechanisms like the Special 301 Report) will be forgotten. Advocates will present those trade partners as having adopted the enlightened laws of the U.S., and ask why American lawmakers would wish to change law that inspires international emulation. Innovation scholar Timothy Simcoe has correctly suggested that harmonization creates inflexibility in domestic policy. Indeed, in a not-too-distant future the rapid transformation of the economy, new big market players, and emerging business models may give policymakers the feeling that we are stuck in a patent policy rut whose usefulness has expired.

In addition, there are indirect economic effects from projecting national patent law onto trade agreements. If we assume that a club of economies (such as OECD) generate most of the innovation worldwide while the rest of countries simply adopt new technologies, the innovation club would have control over the global supply of high value-added goods and services and be able to preserve a terms-of-trade advantage. In this scenario, stronger patent protection may be in the interest of the innovation club to the extent that their competitive advantage remains in industries dependent of patent protection. But should the world economic order change and the innovation club become specialized in digital services while the rest of the world takes on larger segments of manufactures, the advantage may shift outside the innovation club. This is not a far-fetched scenario. Emerging economies have increased their service economy in addition to their manufacturing capacity; overall they are better integrated in global supply chains. What is more, these emerging economies are growing consumption markets that will become increasingly more relevant globally as they continue to grow faster than rich economies.

What is more, the innovation club will not likely retain a monopoly on global innovation for too long. Within emerging economies, another club of economies is placing great investments in developing innovative capacity. In particular, China, India, Brazil, Mexico, and South Africa (and possibly Russia) have strengthened their innovation systems by expanding public investments in R&D and introducing institutional reforms to foster entrepreneurship. The innovation of this second club may, in a world of harmonized patent law, increase their competitive advantage by securing monopolistic control of key high-tech markets. As industries less reliant on patents flourish and the digital economy transforms US markets, an inflexibly patent policy regime may actually be detrimental to American terms of trade.

I should stress that these kind of political and economic effects of America’s posture on IPRs in trade policy are not merely speculative. Just as manufactures displaced the once dominant agricultural sector, and services in turn took over as the largest sector of the economy, we can fully expect that the digital economy—with its preference for limited use of patents—will become not only more economic relevant, but also more politically influential. The tensions observed in international trade and especially the aforementioned considerations merit revisiting the rationale for America’s posture on intellectual property policy in trade negotiations.

Elsie Bjarnason contributed to this post.