71 Am. U. L. Rev. 1449 (2022).
Intellectual property (IP) law provisions of free trade agreements (FTAs) have attracted much criticism. Critics have argued that FTA negotiators, succumbing to the lobbying of various stakeholders, have eliminated or significantly limited many of the flexibilities that multilateral treaties had created, forced stronger IP protection onto developing countries, and fragmented international IP law. While agreeing with a great deal of the criticism expressed by others, this Article departs from the typical vilification of FTAs by identifying and analyzing the positive features of FTA IP provisions that are worth replicating and expanding in future FTAs. These positive features include provisions concerning the transparency of IP systems, cooperation among national IP offices, and clarifications of multilateral IP treaties. The processes of FTA negotiations, adoption, and implementation may produce positives as well; FTAs provide opportunities for experimentation at the bilateral and regional level, whose results may usefully inform future multilateral negotiations. Cross-border IP issues, which can benefit from international coordination, can also be a focus area in future FTA negotiations.
*Samuel S. Lionel Professor of Intellectual Property Law, William S. Boyd School of Law, University of Nevada, Las Vegas. The Author thanks for their comments the speakers and participants of the Symposium “TRIPS at 25,” held at Texas A&M University School of Law in March 2019, where the Author presented the first version of this Article. The Author thanks for their research support Professor Jeanne Price and Associate Professor Youngwoo Ban of the Wiener-Rogers Law Library at the William S. Boyd School of Law, and Yoosun Jun (JD ‘22). The Author is indebted to Gary A. Trimble for his invaluable editing suggestions.