The Investment-Related Aspects of Intellectual Property Rights

Authors

Peter K. Yu, Texas A&M University School of LawFollow

Document Type

Article

Publication Date

2-2017

Journal Title

American University Law Review

ISSN

0003-1454

Abstract

From the debate among presidential candidates on whether the United States should ratify the Trans-Pacific Partnership (TPP) Agreement to the arbitrations Philip Morris and Eli Lilly have sought through the investor-state dispute settlement (ISDS) mechanism, the investment-related aspects of intellectual property rights have recently garnered considerable policy, scholarly and media attention.

This growing attention, to some extent, has brought back memories about the time when the WTO TRIPS Agreement began to transform intellectual property law and policy by redirecting our focus to the trade-related aspects of intellectual property rights. Whether the recent developments on the investment front represent yet another paradigm shift remains an important academic and policy question.

To address this question, the present article critically examines the investment-related aspects of intellectual property rights, with a focus on the use of ISDS to address international disputes involving intellectual property investments. It begins by exploring the growing trend of using investment law and fora to set international intellectual property norms. It also closely evaluates the strengths and weaknesses of the ISDS mechanism.

This article then examines the various upgrades that the TPP Agreement has provided to the ISDS mechanism. It further outlines the conceptual and institutional improvements that could make ISDS even better than the mechanism provided in the TPP Agreement. This article concludes by exploring whether the TPP ISDS mechanism has provided any silver linings if it is adopted without modification.

First Page

829

Last Page

910

Num Pages

82

Volume Number

66

Issue Number

3

Publisher

American University (Washington College of Law)

Recommended Citation

Peter K. Yu, The Investment-Related Aspects of Intellectual Property Rights, 66 Am. U. L. Rev. 829 (2017).
Available at: https://scholarship.law.tamu.edu/facscholar/999

File Type

PDF