Towards an Intellectual Property Bargaining Theory: The Post-WTO Era

Abstract

This Article proposes a positive bargaining theory for intellectual property-based technologies in the post-World Trade Organization ("WTO") era. It focuses on negotiations between patentsensitive industries and developing countries over legal endowments and access conditions in an archetypical patent-sensitive industry, namely the pharmaceutical industry. The ability of developing countries to issue, or threaten to issue, compulsory licenses over pharmaceutical products serves as a working example.This Article's analysis of the bargaining power possessed by developing countries combines a conventional assessment of market size with a qualitative analysis that highlights the effects of these countries' propensity to innovate.

Rising Powers and Multilateral Institutions

“…We hypothesize, in other words, that rising powers are pulled too much between stable institutions and changing material interests to lead in any direction. This behavior would be consistent with the observation found in earlier studies that, in multilateral negotiations over IP, the most influential countries and coalition leaders, both in favor and against strong IP protection, tend to have their domestic institutions aligned with their interests (Benoliel and Salama, 2010;Sell, 2010;Karayanidi, 2011). 3 Our second question pertains to the causal dynamics at play from the time a country resists foreign IP standards to the time it promotes strong international IP protection.…”

Exploring the use of patents in a weak institutional environment: The effects of innovation partnerships, firm ownership, and new management practices

“…Both papers provide evidence from institutional environments marked by stable and reliable governing rules and clear dispute settlement mechanisms. Emerging markets, however, tend to be characterized by market inefficiencies caused by weak regulatory institutions (Benoliel and Salama, 2010;Kotabe et al, forthcoming;La Porta et al, 1998). As a result, alternative mechanisms are expected to compensate for patent system ineffectiveness.…”

Tigers and Dragons at the World Intellectual Property Organization

“…We hypothesize, in other words, that rising powers are pulled too much between stable institutions and changing material interests to lead in any direction. This behavior would be consistent with the observation found in earlier studies that, in multilateral negotiations over IP, the most influential countries and coalition leaders, both in favor and against strong IP protection, tend to have their domestic institutions aligned with their interests (Benoliel and Salama, 2010;Sell, 2010;Karayanidi, 2011). 3 Our second question pertains to the causal dynamics at play from the time a country resists foreign IP standards to the time it promotes strong international IP protection.…”