State Agency and the Patenting of Life in International Law

Bio-patenting is gaining currency as one of the most important and relevant legal issues for future governance. This volume argues that patents have been extended to life and its building blocks in dominant western intellectual property regimes by administrative inertia and judicial fiat rather than deliberate parliamentary processes involving public participation. Yet, regulatory autonomy is a defensible position in relation to bio-patenting. Seemingly discordant rules under the trade and human rights regimes can be reconciled domestically and internationally in order to maximize regulatory and cultural diversity while minimizing state liability to citizens, patentees, and foreign states. A principled blend of historical, doctrinal, and interpretative textual analyses support the argument that states should not be discouraged by the threat of trade sanctions in giving human rights obligations priority over trade in domestic law and policy. The book provides a bi-furcated framework for appropriate state agency. The first branch of the prescribed framework highlights domestic regulatory responses enabling governments to prioritize human rights consistent preferences for health over industrial policy. It is held that an anticipated international approach is necessary to complement national strategies in case of a resulting trade dispute. The second branch argues for the recognition of an equitable conduct defence (ECD) by WTO jurists as a necessary legal mechanism to protect a state's right to self-determination and to neutralize perceived impediments to state action in regulating bio-patenting. Today, all domestic regulatory measures are trade-related; the future existence and legitimacy of the WTO requires the organization to act as steward of broader social values. To do so is consistent with its own institutional history and instruments as well as an understanding of international law as part of a coherent system of governance.