The Past and Future in International Patent Law

The organizers of the 2022 International Law Weekend asked us to consider how our fields have changed in the last century and to offer our thoughts about the future. For intellectual property, the changes have been formidable. The Industrial Revolution gave way to an Information Revolution. As a result, knowledge products now constitute a significant share of global wealth.

And as the world increasingly endures crises like the recent pandemic, climate change, and food and energy insecurity, technological information will become even more important-indeed, crucial to the survival of the planet. My own field is international patent law, where there have been two interrelated sets of legal developments that will require significant rethinking in the years to come. First, substantive standards for patent protection have largely converged as a result of successive international agreements. These have imposed new obligations to afford exclusive rights to technical advances and have made it increasingly difficult for developing countries to acquire technological materials at prices they can afford, to reach the technological frontier, and to enjoy the capacity to innovate for their own needs.

Second, the proliferation of new instruments has led to fragmentation, cycling, and uncertainty, making it even harder for countries to fmd sufficient policy space to protect their interests.