Evolving Innovation Paradigms and the Global Intellectual Property Regime

Since the negotiation of the Agreement on Trade-Related Aspects of Intellectual Property (TRIPS) in 1994, the innovative landscape has undergone dramatic changes due to technological advances in fields such as biotechnology, nanotechnology, and digital communications and computation. The increasing potential for user innovation, and open and collaborative innovation has brought an explosion of innovative activity that does not fit into the sales-oriented, mass market model which underlies the global intellectual property regime. In this Article, I argue that the debate over global governance of innovation should be expanded to account more fully for the implications of these changes. For the most part, criticisms of TRIPS have focused on its failure to account adequately for current needs for access to the fruits of innovative activity.

In particular, critics have focused on the agreement's failure to balance urgent public health needs appropriately against the marginal boost to pharmaceutical innovation supplied by patent protection in developing countries. Here I take a different (though complementary) tack, focusing on the ways in which TRIPS and related agreements enshrine an unduly narrow approach to innovation itself. An adequate global governance system for innovation must take account of the diversity and dynamism of modes of innovation. I propose a re-imagining of the World Intellectual Property Organization as a broader-based innovation policy organization and a global administrative law approach to accommodate evolving modes of innovation.