The Divergence in the Pursuit of Global Patent Law Harmonization: The Developing Countries Struggle and Stand

Abstract

Global patent law harmonization is envisioned to provide facilitation to negotiations and commercialization of every potential invention. Basically, it offers a platform where each player can be at the same level and can respond and meet the growing need for development in parallel to the expanding industrialization and international trade. While the world is agreeing to more free trade and moving towards union of nations, paradoxically nations are asserting their own independence, their sovereignty and distinctiveness. Distinctiveness of its law is a valuable measure of identity and sovereignty of each country and basically responding to the specific needs of the society. The distinctiveness of each jurisdiction is too valuable a difference to compromise among many factors, and this primarily becomes a hedge to harmonization of laws and key reason for the divergence of many nations.

With the arduous track towards harmonization this study presents the overview of global patent law harmonization, its importance and early efforts towards harmonization. Developed countries are considered to be the originators of the harmonization, their reforms and offered solutions that brought harmonization into its conception and early implementations were given a careful attention.

This study also delves largely on the divergence in pursuit to a more harmonized global patent law. Despite the various efforts on harmonization, outstanding issues are still huge to bridge the gap between nations. The newly proposed harmonization - substantive harmonization has a slow development due to obvious tug-of-war among countries. The harmonization has impacted the developing countries economically and technologically as well as legislatively.

While the LDCs and developing countries are still in its struggle to cope with the TRIPS implementation, another substantive instrument is coming on its way. Proposed harmonization such as the SPLT would shrink the remaining flexibilities of the developing countries to catch-up. This may hinder the potential of the developing country of seeing its full capacity with IP system. Furthermore, harmonization could serve as legal imperialism to the LDCs and developing countries. This suppresses their sovereignty as they were obliged to align their laws to the one that is internationally implemented.

As a developing country, the Philippines has its own share on the struggles and setbacks in fully committing to harmonization. While the country desires for a harmonious patent system and be at tuned internationally, the cost of having it and its implementation is too high that it becomes of less priority. Its economic sustainability and technological capacity, including the leveling of is capacity to the one that the harmonization is requiring from a participating country are few among the many challenges it has to hurdle. Still another concern delves on the impact of harmonization on policies focusing public interest especially health and access to medicines. These concerns would substantiate the divergence on the proposed harmonization, requiring a huge and careful attention from a developing country. Philippines, as a developing country, the road to harmonization is still an unsteady one where compromises have to be made if it intends to pursue further patent law harmonization.

Finally, this study wants to provide founding theory and better outlook on the patent harmonization in the developing countries, which the succeeding researchers can further delve into.