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Journal Article

Declaration on Patent Protection


Grosse Ruse-Khan,  Henning
MPI for Innovation and Competition, Max Planck Society;


Hilty,  Reto M.
MPI for Innovation and Competition, Max Planck Society;


Kur,  Annette
MPI for Innovation and Competition, Max Planck Society;


Lamping,  Matthias
MPI for Innovation and Competition, Max Planck Society;


Ullrich,  Hanns
MPI for Innovation and Competition, Max Planck Society;

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Burk, D. L., Correa, C. M., Drahos, P., Gopalakrishnan, N., Grosse Ruse-Khan, H., Hilty, R. M., et al. (2014). Declaration on Patent Protection. IIC - international review of intellectual property and competition law, 45(6), 679-698. doi:10.1007/s40319-014-0243-6.

Cite as: https://hdl.handle.net/11858/00-001M-0000-0024-52EE-2
As a framework regulation for innovation markets, the patent system needs to be tailored to the innovation process, which it is supposed to serve, and to the competitive environment, within which it must operate. In order to ensure an efficient functionality of the patent system as an innovation policy tool, patent rights ought to be defined, justified and continually reconsidered by reference to their socio-economic benefits and costs.

Sovereign states should retain the discretion to adopt a patent system that best suits their technological capabilities as well as their social, cultural and economic needs and priorities, with the proviso that the exercise of such discretion must remain within the boundaries of international law. Taking into account the customary principles of interpretation of international law, this Declaration seeks to shed light on these boundaries. The purpose is to clarify the policy space that the ‘Agreement on Trade-Related Aspects of Intellectual Property Rights’ (TRIPS Agreement) leaves to national legislators and judicial authorities with regard to the implementation and administration of their patent systems.

When the world’s major patent systems first developed into their present form, nation states were able to engage in the regulatory design process under conditions of high sovereign autonomy. Over the past decades, this autonomy has been progressively eroded. Today, states face a legal and institutional regime consisting of multilateral, regional and bilateral agreements, which are becoming increasingly complex and set more and more limits to their regulatory freedom.

As a result, the ability of states to maintain a proper balance between the need for protection of knowledge goods in global markets, the freedom to regulate national or regional innovation markets, and the policy space for pursuing diverse public interest goals risks becoming unduly constrained. This Declaration seeks to clarify some of the regulatory options states still retain under international law, in particular the TRIPS Agreement.