[Ip-health] Maskus/CFR: Against TRIP-plus; critical of US patent system

[robert weissman]

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      Current Patent System is Misguided and Hinders U.S.
      Competitiveness, Argues New Council Special Report

November 28, 2006
Council on Foreign Relations

/*Report Recommends Changing Legislation and Trade Policy*/

November 28, 2006=97Reforms of the U.S. patent system have made it too
easy to obtain and defend patents and more costly to challenge patent
decisions, thereby limiting the competition of ideas, discouraging
innovation, and ultimately reducing U.S. competitiveness, argues a new
Council Special Report. Additionally, the U.S. policy of promoting this
unbalanced system in trade negotiations is =93senseless=94 and damaging to
U.S. influence. Instead, the United States should strike a grand bargain
that emphasizes enforcement of existing patent laws in return for
relaxed patent standards, says the report.

*/Reforming the U.S. Patent Policy: Getting Incentives Right
<http://www.cfr.org/publication/12087/>/*, by the University of
Colorado=92s *Keith Maskus*, examines the domestic patent system and urges
that =93U.S. policy relax the modern notion that intellectual property
rights are basic rights and return to the tradition of limiting the
scope of patents in order to encourage the use of new technologies and
information.=94

Recent congressional proposals to reform the system, writes Maskus,
=93would be the most sweeping in many years, but they would still not do
enough to improve the functioning of the clogged and costly patent
system.=94 Proposed reforms also do not address theU.S. counterproductive
approach to international patent rules.

In the global economy, =93many countries prefer to strike a balance more
in line with the needs of technology users, while transparently
recognizing the importance of innovation incentives. In contrast, the
U.S. patent system has become so protective of exclusive rights that it
diminishes incentives for competitive innovation in some respects.=94
These differences could help competitors gain an advantage by creating
more welcoming environments for innovative businesses. The report also
addresses problems with enforcement and piracy in emerging markets. =93The
familiar problem in China is that patents are poorly enforced, a
deficiency that encourages massive copying and imitation.=94

The U.S. policy response to these differences has been a drive to
harmonize patent standards through both bilateral free trade agreements
and the World Intellectual Property Organization. However, argues
Maskus, =93countries need the flexibility provided under TRIPS
[Trade-Related Aspects of Intellectual Property Rights]=97the
multilaterally agreed regime=97to manage and support their own innovation
and competition policies. Pushing a high-level harmonization agenda has
not been fruitful but has generated resentment in trading partners and
raises risks for the future of U.S. bilateral trade policy.=94

To address the problems in the current patent system, the report focuses
on the recent House and Senate bills and makes recommendations that
would tighten domestic standards for patentability while making it
easier to challenge patents of questionable quality.

On the international front, Maskus calls for the United States to
abandon efforts to raise international intellectual property rights
standards to its own levels and exchange relaxed harmonization standards
for =93greater assistance for effective enforcement procedures in order to
relax budget constraints,=94 on emerging markets.

*Contact: CFR Communications, 212-434-9888, communications@cfr.org*