Finnegan, Henderson, Farabow, Garrett & Dunner, LLP Distinguished Lecture on Intellectual Property

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American University Washington College of Law

Program on Information Justice and Intellectual Property




The Fourth Annual

Finnegan Distinguished Lecture

on Intellectual Property




Daniel Gervais on TRIPS 3.0




Tuesday October 21, 2008

5:00pm Reception • 6:00pm Lecture

4801 Massachusetts Ave NW, Washington, DC 20016



PIJIP Finnegan




About TRIPS 3.0

The paper will present the evolution of the TRIPS Agreement, which I will argue has now entered a third phase ("TRIPS 3.0"), one that is informed bycalibration narratives. The intellectual components of the calibration process that is underway are many: (a) the recognition that developing countries are very different, from Chile to China, from Bolivia to Burkina Faso or from Egypt to India, and consequently may need different implementations of TRIPS, instead of "cookie cutter" norm implants; (b) the recognition that below certain developmental thresholds, the introduction of high levels of intellectual property protection will not generate positive impacts (as was evidenced by the extension of transitional periods available for least-developed WTO members); (c) the recognition that intellectual property protection is necessary to develop innovation and foreign direct investment (including technology transfers) but in itself is insufficient to achieve developmental objectives; (d) consequently, the recognition that any complete TRIPS implementation must form part of a broader strategic initiative; and finally (e) the recognition that the sudden introduction of high levels of protection and enforcement may induce significant welfare impacts, which must also be managed. The paper will review recent efforts to recognize the need for calibration, from the extension of transitional periods for least-developed countries to the G8 "Heiligendamm Process". Finally, I will consider the medium and long-term impact of TRIPS, which might be to cause or accelerate a geographical displacement in innovation and what that means for developed countries and for theUnited States. The Conclusion will offer some thoughts on the longer term role of the developing world on the international intellectual property stage.