© 1998 by Oxford University Press
Securing compliance with the TRIPS agreement after US v India
Professor of Law, Vanderbilt University, School of Law, Nashville, TN, USA
The different developmental circumstances of the industrialized and developing countries call for different approaches to intellectual property rights protection. While increasingly high levels of protection may (or may not) be appropriate to the industrialized economies, developing country economies are more likely to benefit from strategies and rules which encourage building upon existing stocks of knowledge. TRIPS Agreement standards provide sufficient 'wiggle room' to allow developing countries to pursue pro-competitive strategies, while still acting consistently with the TRIPS Agreement requirements of national and most favoured nation treatment. The decision of the WTO Appellate Body in the India-Mailbox case was a critical step in affirming the WTO-consistency of pursuing national and regional policies which take advantage of the absence of strict harmonization of IPRs standards at the worldwide level. The India-Mailbox decision suggests that the WTO will accord substantial deference to national and regional rules which manifest good faith compliance with the basic standards of the TRIPS Agreement. Developing countries that adopt pro-competitive IPRs-related strategies may move faster along the technology curve than countries that follow more protectionist strategies.