This chapter begins by introducing the problem of access to affordable medicines in developing countries. It describes the patent policy space available to states prior to the adoption of the TRIPS Agreement and the attempts made by developing countries to reclaim their patent policy space after the adoption of the TRIPS Agreement via the Doha Declaration on the TRIPS Agreement and Public Health. It notes that the Doha Declaration only yielded marginal gains in the form of the confirmation of the flexibilities that are already contained in the TRIPS Agreement and the introduction of a waiver system that is more burdensome and less beneficial. Nevertheless, the chapter contends that paragraph 4 of the Doha Declaration provides a linchpin that developing countries can use to preserve their patent policy space as it sanctions the incorporation of a right to health perspective, and invariably the incorporation of a model of human rights, into the design, implementation, interpretation, and enforcement of their national patent laws. The chapter also presents a roadmap for the rest of the book.

Agreements about reciprocal recognition of patent rights between nations were at the heart of discussions at the International Union for the Protection of Industrial Property held in Paris in 1883. Yet while some treat the so-called “Paris Union” as a starting point for the subsequent globalization in patent rights, the context of early attempts at patent law harmonization was international tension and disagreements. Divergences in patent laws have their roots in the strong heterogeneity manifest among national patent systems developing before 1883. The sheer diversity of patent systems available was indeed highlighted by those critics who sought the abolition of patents rights. The project of harmonization should thus be seen as a defensive response to critics of patenting per se, rather than as the advent of a natural process of legislative convergence. In looking at the 1883 Convention in this light, we see that negotiations there can only be understood in terms of a strong rivalry between the French and German models. Such rivalries continued to characterize the membership of the Paris Union even into the interwar period, raising major doubts about whether the project of harmonization could ever be completed.

Unlike rival systems in France and Britain, early United States law from 1790 until 1880 required patentees to supply working models of their inventions. Although the US system was widely copied later in the century (e.g., by Germany and Japan), by that time the models requirement was widely obsolete. Thus by the time of the Paris Convention for the Protection of Industrial Property in 1883, the prior tradition of making and examining models was virtually irrelevant: it curtailed the possible scope of patents, excluding, for example, patents on pure processes. So for these and other reasons inventors’ lobbies vehemently opposed it. Nevertheless the culture of patent models is worth studying both for the light it sheds on shifting concepts of innovation, and as an instrument of international publicity for the US patent system: the requirement of a model shifted attention from motive concept to the apparatus represented. The models requirement, moreover, sustained a culture of invention populated by professional model makers and lawyers clustered in the nation’s capital, as well as a popular public museum.

Across the globe, modern patent laws and their early modern antecedents have served as policy instruments to reward and promote innovation. Best known are the first modern patent regimes in England, France, and the United States along with those systems adopted in the next wave of industrializing nations in Europe. Less examined are those patent systems and patenting cultures in late-developing countries, ranging from Eastern Europe to Latin America and beyond. This chapter examines one of these cases: the emergence of a modern patent system in Mexico between 1890 and 1910. There, new patent institutions drew partly on forms inherited from its colonial Spanish past, but were also shaped by the exigencies of responding to the international economy of the late-century Atlantic world. A partial outlier among other late industrializers, Mexico moved to harmonize its patent system with that of the United States in order to take full advantage of cross-border technology flows.

As an area of legal study and practice, intellectual property (or IP) law lacks the conceptual coherence of an internally consistent and discrete law subject like contract, crimina’ or tort, which each has its own normative rules applicable throughout, or even one that describes a category of law involving the application of a number of such law subjects to a particular subject matter, like environmental law or entertainment law. For this reason, mixing and matching notions or terms from one area of IP law with those from others can be at best confusing and at worst dangerously misleading, however beguiling it may be to do so. To avoid both, the well-crafted IP treatise provides invaluable assistance and clarification.

The negotiators of the WTO TRIPS Agreement made a conscious and far-reaching decision to incorporate substantive provisions of the central pillars of the multilateral intellectual property system, the Paris and Berne Conventions, not only into the TRIPS Agreement itself but also into the broader complex of multilateral trade law. Subsequent dispute settlement practice has eased concerns that this fundamental structural decision would lead to a fragmentation of the international law of intellectual property. Yet the intent behind, and the full consequences of, this decision are not entirely apparent. This chapter maps out the issues, and draws on the practice of dispute settlement thus far and on the lessons of domestic policy making and legislation to suggest a systematic and coherent approach to showing the 'respect' to these venerable conventions that the TRIPS Agreement text ostensibly requires.

Given all the circumstances surrounding the attempts to oversee the performance of legal academics and their research efforts, it is remarkable that Sam Ricketson has written and published his treatises on the law of intellectual property (in Australia), the 100-year history of the Berne Convention and the Paris Convention. Hindsight is always 20/20 as noted so frequently by the courts when considering inventiveness and what was obvious at a given prior point in time. it was not obvious at the time of commencing these works that they would be so successful Yet hindsight tells us that Ricketson’s decisions to invest so much of his time and energy into writing his treatises were rational and obvious decisions and the outcomes for both himself and the multiple audiences that enjoy the fruits of his labour equally predictable.