Thursday, November 25, 2021
Rochelle Cooper Dreyfuss (New York University), Daniel Benoliel (University of Haifa), Technological Self-Sufficiency and the Role of Novelty Traps, 24 Vanderbilt J. Ent. & Tech. L. (forthcoming 2022):
The COVID pandemic has demonstrated the tragic consequences of technological dependency. Unable to manufacture vaccines for themselves, developing countries must rely on obtaining supplies from other nations. While strong arguments have been made to waive international obligations under the TRIPS Agreement to permit these countries to freely use of COVID-related patented inventions, it is not clear that this move would produce sufficient vaccine to meet global demand. Considerable scholarship has been devoted to the question of how to help these countries reach the technological frontier and become technologically independent. In this paper, we identify a novel source of their problem: a structural feature of modern patent law traps technologies in a legal limbo, where there are inadequate incentives to invest in the adaptations and efforts needed to make technologies effectively available in low-income countries. Moreover, the current regime deprives potential innovators of an opportunity to protect their intellectual contributions and begin to build robust innovative ecosystems. The paper proposes a modified patent regime designed to break what we call the 'novelty trap' and discusses its compatibility with international intellectual property law.