In several publications (like this 2005 Fordham Law Review piece), I considered the available empirical evidence (and its paucity in the case of developing countries) on how to measure policy impacts on innovation and development. The paper showed that policy makers and those attempting to build policy models were clutching at a few empirical straws. This was also noted in several chapters in both editions of Intellectual Property, Trade and Development I edited (Oxford UP), the last in 2014. One of the main points made there was that when TRIPS was negotiated and first implemented (what I have referred to as ‘TRIPS 1.0’), there was very little to assist policy makers and legislators. Many countries implemented IP laws that were TRIPS compliant with a view to avoiding possible violations of their WTO obligations and not much else.
20 years later, we have much more and much better data, and better theoretical models to develop and use appropriate indicators. As suggested in a number of theoretical models (eg in my Calibration piece), levers other than ip are often much more important. In fact this chart from the 2015 WIPO Global Innovation Index (GII) shows an “ideal” policy/administrative framework that includes only measures other than substantive IP rules. There is little doubt that IP alone doesn’t work, and that it it forms part of a policy package that will vary by country and region. A host of socioeconomic, historical and cultural factors come into play.
The GII’s Conceptual Framework notes something that seems self-evident but at the same forces us to confront many traditional assumptions about IP, and especially patents:
“Previously economists and policy makers focused on R&D-based technological product innovation, largely produced in-house and mostly in manufacturing industries. This type of innovation was performed by a highly educated labour force in R&D-intensive companies. The process leading to such innovation was conceptualized as closed, internal, and localized. Technological breakthroughs were necessarily ‘radical’ and took place at the ‘global knowledge frontier’. This characterization implied the existence of leading and lagging countries, with low- or middleincome economies only catching up. Today, innovation capability is seen more as the ability to exploit new technological combinations; it embraces the notion of incremental innovation and ‘innovation without research’.” (Id. at 41).
When it comes to providing and enforcing exclusive IP rights, sometimes less is more. This should not lead to the hasty conclusion that less IP is always more. But the fact that much innovation is incremental means that excluding others may both seem unfair as a normative matter when the increment is very small, and economically inefficient if it prevents more increments for being developed and exploited. Yet the rights are often geared towards the pioneer/radical innovation, with major companies competing in a winner-takes-all environment. Courts have modulated exclusivity to a degree, but a more structured rethink must now happen.
The new or strengthened focus on evidence-based innovation policy-making is such that we can begin to think of meta-analyses of data points and indicators. But clearly more is not always more. That will change the face of IP, for good one hopes.