Daniel Gervais Gives Fourth Annual Finnegan Lecture at WCL

Tamara Teslovich
Octber 23, 2008

On October 21, 2008 Daniel J. Gervais addressed a room full of students, faculty and IP practitioners on the subject of TRIPS 3.0.

He began his lecture with an introduction to TRIPS including a detailed look at the ways in which it has progressed:

The first multilateral agreement to cover the full range of IP rights, TRIPS began as a detailed set of provisions on domestic enforcement of IP subject to WTO dispute-settlement mechanisms. TRIPS 1.0 was developed in response to the realization that IP was property and needed protection and a way in which to import and export as well as an infrastructure to facilitate outsourcing. With TRIPS 2.0 the focus had changed 180 degrees, with an emphasis on the impact of IP in the west and numerous empirical studies including those regarding the developing world. TRIPS 3.0 is all about calibration. With a vast range of products, consumers, and countries, the question of the day is whether or not IP as a trade right can accommodate these distinctions. Furthermore, there exists mass confusion as to whether IP exists for innovation or for FDI?

Moving on the implementation of TRIPS, Mr. Gervais discussed the trade-related aspects of IP and the ways in which IP interacts with other rights. From human rights to cultural rights, the WTO has made it clear that TRIPS may not be read in critical isolation from international law, and that non IP rights may be imported in an attempt to interpret human rights particularly in those areas related to Traditional Knowledge. With TRIPS 3.0, IP has become more than just another right; it has become part of a national innovation strategy particularly within developing countries. Meanwhile, developed countries are faced with a need to recalibrate their efforts to deal with a plethora of issues including excesses of patent law, technological advancements, dilution, DMCA, business method patents, and more.

Once finished with an examination of the past and present, Mr. Gervais moved on to the future of innovation and the need for us to question the assumptions of our system once and for all. Is democracy necessary for innovation? What about political rights? Should the United States worry about being overtaken by developing nations enjoying a new player’s advantage? Is our existing system sustainable? What role is there for the citizens? What role is there for the states themselves? Can the United States afford to remain an exceptionalist player or will we be forced to engage multilaterally at some point in order to remain competitive on an international level? What role should the WTO play in negotiations?

With so many questions left unanswered, the only thing certain about this situation is that now, more than ever, we are in need of innovative minds willing to think outside the box, take chances, and ask those questions that no one dares to ask so that we may find an answer once and for all.

To see the lecture for yourself check out the webcast.

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