Human Rights in a Technological Age: The Right to Participate in Science

" Human Rights in a Technological Age: The Right to Participate in Science ," 55 N.Y.U. J. Int’l L. & Pol. 581 (2023)

"Human Rights in a Technological Age: The Right to Participate in Science," 55 *N.Y.U. J. Int’l L. & Pol.* 581 (2023)

Rochelle C. Dreyfuss, Human Rights in a Technological Age: The Right to Participate in Science, 55 N.Y.U. J. Int'l L. & Pol. 581 (2023)

The tension between intellectual property and human rights is well recognized and highly evident. 1 Consider, for example, the Universal Declaration of Human Rights (UDHR). It posits that creators have the right to protect the interests resulting from their scientific production, but at the same time, it recognizes the right of everyone to share in scientific advancement and its benefits. 2 Typically, this tension is framed as a clash between the proprietary interests of inventors and the public's interest in access. 3 Accordingly, it is typically re- Jan. 3, 1976) [hereinafter ICESCR]. Similarly, the U.S. Constitution protects the right to free expression and property, amends. I and V, but the Constitution also gives Congress authority to enact patent and copyright law, Art. 1, § 8. 3. See generally, HOLGER HESTERMEYER, HUMAN RIGHTS AND THE WTO: THE CASE OF PATENTS AND ACCESS TO MEDICINES (examining the conflict between WTO law, specifically patent law, and international human rights law); AURORA PLOMER, PATENTS HUMAN RIGHTS AND ACCESS TO SCIENCE (Edward Elgar Pub. 2015) (examining the challenges posed by the modern patent system to the human right to access the benefits of science); JENNIFER SELLIN, ACCESS TO MEDICINES (examining the interface of access to affordable medicines and patent protection from the perspective of international human rights law). A strong argument can be made that inventors do not have a human right in their output, see, e.g., Jan Brinkhof, On Patents and solved through various mechanisms that enable the public to enjoy protected works without the authorization of the right holder. 4 In virtually all countries, legislation includes limitations and exceptions to the rights conferred, 5 and international intellectual property agreements typically gives member states policy space to adopt such provisions. 6 In addition, vari-Human Rights, in A PARADOX, supra note 1, at 140 n.1 (noting how inalienable rights fit within some, but not all branches of intellectual property law)Nonetheless, the dominant view is that patents are a species of property rights. And even if they are only statutory, they present a clash with the right to share in scientific advancement. For an example of a court using human rights to ensure access, see Patricia Asero Ochieng v. Attorney General (2009) Pet. No. 409, ¶ ¶ 60-66 & 86-87 (H.C.K.) (Kenya) (partly using the international human right to health to find that certain articles of the country's Anti Counterfeit Law violate petitioner's human rights). 4. See, e.g., S. Porsdam Mann, et al., Advocating for Science Progress as a Human Right, 115 PNAS 10820, 10821 (2022) (noting that most papers on the right to science discuss access rather than participation). 5. See, e.g., 17 U.S.C. § 102(b) (excluding ideas from the ambit of copyright protection); Convention on the Grant of European Patents (European Patent Convention), art. 53(b), opened for signature Oct. 5, 1973, 1065 U.N.T.S. 199 (entered into force Oct. 7, 1977), as amended by Act revising the Convention on the Grant of European Patents of Nov. 29, 2000 (entered into force Dec. 13, 2007), its Implementing Regulations, Protocols, and Rules Relating to Fees [hereinafter EPC] (excluding certain diagnostic methods from patent protection); Bilski v. Kappos, 561 U.S. 593, 601 (2010) (excluding from patentability laws of nature, physical phenomena, and abstract ideas); 35 U.S.C. § 271(e) (allowing experiments on patented pharmaceuticals to generate data for market clearance). In many countries there are also external limits on how rights are exploited, see, e.g., U.S. Dep't. of Justice and Fed. Trade Comm'n, Antitrust Guidelines for the Licensing of Intellectual Property (Jan. 12, 2017), https://www.ftc.gov/system/files/docu-ments/public_statements/1049793/ip_guidelines_2017.pdf [https:// perma.cc/82SB-9NYG] (detailing "the antitrust enforcement policy of the U.S. Department of Justice and Federal Trade Commission . . . with respect to the licensing of intellectual property protected by patent, copyright, and trade secret law, and of know-how"); see also HERBERT HOVENKAMP, MARK D. Low-End Consumers, 53 FLA. L. REV. 727, 728 (2001) (exploring the possibilities that the TRIPS Agreement offers to address the problem of access and affordability of drugs to low-end consumers facing life threatening illnesses). 6. See, e.g., Marrakesh Agreement Establishing the World Trade Organization, Apr. 15, 1994, 1867 U.N.T.S. 154, 33 I.L.M. 1144 (entered into force Jan. 1, 1995) annex 1C (Agreement on Trade-Related Aspects of Intellectual ous philanthropic and voluntary initiatives promote access to existing scientific developments; some also subsidize the development of new innovations. Among them are the Bill and Melinda Gates Foundation, Thomas Pogge's Health Impact Fund, public-private partnerships, 7 and alliances administered by the United Nations and other international organizations. 8 There are, however, at least two difficulties with conceptualizing the commitment to allow everyone to benefit from scientific advancement as an interest in public access. First, access is then often confined to things that others have already created. To the extent that innovators respond to the monetary incentives offered by the intellectual property system, the innovation agenda is largely set by the demands of the rich. 9 Needs unique to the Global South are not addressed because it lacks the resources to pay the supracompetitive prices that intellectual property protection allows innovators to charge. Property Rights) arts. 30 & 31 [hereinafter the TRIPS Agreement or TRIPS] (allowing WTO members to make cabined exceptions to the rights conferred and setting out the conditions under which they can permit other unauthorized uses); see also id., art. 8 (allowing members to prevent abuse). 7. See generally MARGARET CHON, PEDRO ROFFE, & AHMED ABDEL-LATIF, THE CAMBRIDGE HANDBOOK OF PUBLIC-PRIVATE PARTNERSHIPS, INTELLECTUAL PROPERTY GOVERNANCE, AND SUSTAINABLE DEVELOPMENt (2018) (examining, through selective case studies, the relationships between public-private partnerships and intellectual property). 8. BILL &MELINDA GATES FOUNDATION, https://www.gatesfoundation. org [https://perma.cc/Q5C4-S5XX] (last visited Apr. 2, 2023).; Health Impact Fund: Delinking the price of drugs from the cost of research, HEALTH IMPACT FUND, https://healthimpactfund.org/en/ [https://perma.cc/Y6P3-DLZH] (last visited Mar. 1, 2023); U.N. DEPARTMENT OF ECONOMIC AND SOCIAL AF-FAIRS, SUSTAINABLE DEVELOPMENT, THE PARTNERSHIP PLATFORM, https:// sdgs.un.org/partnerships [https://perma.cc/HQ4A-FKSE] (last visited Feb. 26, 2020) (866 voluntary commitments and multi-stakeholder partnerships relate to SDG 9: Build resilient infrastructure, promote inclusive and sustainable industrialization and foster innovation). 9. To be sure, there are also advances that are made through other mechanisms, such as aforementioned initiatives, supra notes 7-8, and through international assistance and cooperation programs, see generally Takhmina Karimova, The Nature and Meaning of 'International Assistance and Cooperation' under the International Covenant on Economic, Social and Cultural Rights, in ECON., SOC., AND CULTURAL RIGHTS IN INT'L LAW: CONTEMP. ISSUES AND CHALLENGES 163 (Eibe Reidel ed., Oxford University Press 2014) (examining "the concept and meaning of international assistance and cooperation" under the U.N. Charter and Article 2(1) of the ICESCR). However, the patent regime accounts for many advances needed in the modern age. Second, this framing deprives those in the South of their dignity: because essential products are so often protected by intellectual property, they must, in most cases, rely on the "kindness of strangers" to fulfill their needs. 10 The COVID-19 pandemic furnishes a dramatic illustration of both problems. Vaccines were quickly discovered, but the most effective required a type of storage available only in wealthy nations. The "last-mile" problem-developing vaccines that could be distributed and administered to impoverished populations in the absence of sophisticated infrastructurewas largely ignored. Further, despite the best efforts of COVAX, GAVI, the World Health Organization, and other institutions dedicated to global health, vaccine nationalism took hold, leaving those in developing countries largely in the lurch. 11 Admittedly, international lawmakers eventually recognized the need to increase manufacturing capacity. In a Ministerial Decision, the World Trade Organization (WTO) allowed states to waive patent obligations under the TRIPS Agreement "to the extent necessary to address the COVID-19 pandemic." 12 But it took over two years for the waiver to be promulgated. During that period, the virus mutated and vaccine hesitancy grew to the point where more doses were available than there were people willing to be immunized. 13 The waiver also betrayed a miserly approach to access: it applied only to vaccines, not to diagnostics, treatments, or protective and storage equipment, all of which will surely remain both crucial and scarce. It was also confined to patents and market clearance data, not to the trade secrets that are needed in the production and distribution process. 14 To add insult to injury, the waiver was opposed partly on the ground that developing countries would not, in any event, have the capacity to manufacture vaccine for themselves. 15 The pandemic experience suggests the need for a more capacious conception of human rights-one suited to an age in which emerging problems are often solved technologically. The right enshrined in the UDHR to "share in scientific advancement" must, in short, be re-interpreted as the right to more than simply access to scientific advances. Rather, it must include the right to participate in the enterprise of doing science. 16 Recast in this way, the right would invigorate state efforts to enact laws that enable potential innovators to learn from others, build on their work, adapt that work to local needs, achieve recognition for their contributions, acquire the capacity to fulfill unmet local demand, and innovate at the knowledge frontier. Recognizing a right to participate in science would also have advantages at the international level. The aforementioned policy space available in international law is narrowing through the ways existing agreements have been interpreted, by continued efforts to increase protection for innovators, and on account of procedural developments with unappreciated substantive consequences. Recognizing the right to do science as fundamental to human development would slow (if not reverse) this process and allow states to build their own technological capacity. Moreover, it would boost efforts to acknowl-(2022) (arguing that "the TRIPS waiver proposal should be viewed as offering a necessary and proportionate legal measure for clearing intellectual property barriers that cannot be achieved by existing TRIPS flexibilities."). The problem here is that while patent disclosures may reveal a way to make the protected product, they do not necessarily reveal the way to make the specific formulation approved by regulatory authorities for marketing. 15. Reto Hilty et al edge the contributions inventors in the South are already making to the knowledge base. 17 The pandemic disrupted global value chains, created an economic slowdown, and led the Global North to enact laws to maintain its resilience in crucial technologies. 18 A more expansive understanding of the human right to science would give the South the capacity to do the same. This article highlights the role that a human right to participate in science could play in international patent law. Part II describes developments in that law that have reduced the flexibilities available to the South, and Part III shows how these changes have impeded national efforts to catch up to the knowledge frontier and become technologically self-reliant. Part IV discusses the budding recognition of a human right to participate in science and demonstrates its potential impact on international patent and trade secrecy law. While there are other forms of intellectual property law, such as copyright protection, that can also constitute obstacles to technological advancement, human rights perspectives on these regimes have been studied by others. 19 The literature has largely ignored patent and trade secrecy laws. Accordingly, this article focuses on that question. It is not as though countries that are behind the knowledge frontier have not tried to get into the science game. Some have pursued what Jerry Reichman calls "fair following" by supporting local industries that copy existing works. 20 Other states have relied on foreigners to invest in technological development within their territories, particularly by requiring foreign patent holders to manufacture locally. 21 In both cases, the jobs created help train local workers, enhance their technological sophistication, and enable them to acquire the skills needed to become innovators in their own right. Both approaches can be useful, but only up to a point. Fair following and local manufacturing are profitable when labor costs are low. However, as workers move along the technology spectrum, their labor becomes more costly and manufacturing may shift to countries where people will work for less. Better, then, is to focus efforts on adapting foreign inventions to local needs. 23 This strategy deals with the last-mile problem and exploits the comparative advantage that locals possess in knowing what they need. Fostering incremental innovation also creates a rung on the inventiveness ladder that may be closer to domestic inventors' initial capabilities. But this strategy can be expensive: it requires investment not only in research, but also in educating potential consumers about the benefits of adopting new products, and helping purchasers-as well as local manufacturers, distributors, and maintenance organizations-understand how to use and maintain them. For that reason, those who have studied capacity building suggest that countries pursuing this strategy adopt patent systems that ensure that local innovators can capture returns on their investments. 24 To a large extent, however, the availability of all these activities-learning by doing through fair following and local working, research on existing technologies, and devising a system to grant exclusive rights to locals based on local achievements-has become increasingly uncertain as the international patent system has evolved. It is not entirely obvious why this should be so. The earliest multilateral agreement involving patents, the Paris Convention, imposed primarily procedural obligations on Member States. 25 It did not include a requirement that members adopt a patent regime. For many years, the World Intellectual Property Organization (WIPO) hosted negotiations over a proposed Substantive Patent Law Treaty (SPLT), which would have led to a degree of substantive convergence. 26 But those negotiations failed in large part because developing countries understood that most patents would go to foreigners, patenting would raise prices, and locals would not enjoy offsetting benefits. 27 Negotiations over substantive commitments to patent protection eventually shifted to the trade arena, where the opportunity for trade concessions persuaded developing countries to join the WTO and implement the TRIPS Agreement's requirements for patent protection. 28 However, TRIPS is a minimum standards agreement and was justified as innovation-promoting. 29 Higher standards of protection would, it was said, encourage technology transfer and direct foreign investment in innovation-related activities. 30 TRIPS also included many flex- ibilities. In addition to measures allowing WTO members to recognize certain unauthorized uses of patented materials, 31 it left states free to adopt their own methods of implementation and to define key terms, such as the "new" (novelty) and "inventive step" (nonobviousness) requirements for patent protection. 32 Furthermore, TRIPS incorporated by reference the Paris Convention, which allowed nations to require right holders to work their patents locally. 33 Most important, the TRIPS Agreement stated that its objectives and underlying principles included improving social welfare and promoting technological development. 34 Nonetheless, TRIPS did not lead to advancement in most developing countries. In part, the problems the South encountered were not related to intellectual property commitments. Rather, even though the WTO agreements enlarged markets, the trade benefits of joining up did not fully materialize. 35 There was also less technological transfer and direct foreign investment than anticipated. 36 Moreover, as Joseph Stiglitz and others have suggested, increasing financial incentives was in-31. TRIPS, supra note 6, arts. 30-31. 32. Id., arts. 1 & 27. 33. Id., art. 2; Paris Convention, supra note 25, art. 5 (allowing states, after a period of time and subject to certain conditions, to require patent holders to use their patented processes and make their patented products within their borders). 34. TRIPS, supra note 6, arts 7-8. sufficient to spur innovation in countries that also lacked the institutions needed to develop human capital, the infrastructure required to conduct research, the means to accumulate funds to invest in inventive enterprises, bankruptcy protection to mitigate risk, or reliable judicial systems in which to enforce rights. 37 Still, intellectual property obligations bear some responsibility for thwarting developing countries' efforts to catch up. The WTO took an approach to interpreting the TRIPS Agreement that narrowed the policy space available to member states. 38 Additionally, while developing countries may have thought that meeting their TRIPS obligations meant that stronger protection would not be demanded, many were later pressured to do more, through either unilateral threats of trade sanctions or regional or bilateral agreements with new commitments. 39 Furthermore, and perhaps less recognized, efforts to streamline procedures for obtaining protection accelerated convergence on substantive law. Shifting negotiations from WIPO to the WTO produced one major change in the intellectual property regime: for the first time, noncompliance could be challenged in state-to-state 39. See Henning Grosse Ruse-Khan, The International Law Relation Between TRIPS and Subsequent TRIPS-Plus Free Trade Agreements: Towards Safeguarding TRIPS Flexibilities?, 18 J. INTELL. PROP. L. 325 (2011) (discussing the relationship between TRIPS and later agreements); see also Sarah R. Wasserman Rajec, The Harmonization Myth in International Intellectual Property Law, 62 ARIZ. L. REV. 735, 756 (2020) (explaining that, upon conclusion of the TRIPS agreement developed countries stepped up efforts to tailor protection through forum-shifting and bilateral or regional trade agreements). dispute resolution. 40 The outcomes were surprising to many in the intellectual property community. The Dispute Settlement Body (DSB) decided intellectual property cases with tools that had been developed in trade disputes arising under the General Agreement on Tariffs and Trade (GATT), 41 without regard to the difference between trade questions, which largely deal with problems at national borders, and intellectual property matters, which reach deep within a country's territory to have a direct impact on culture and social welfare. 42 Perhaps the most obvious legacy of the GATT's trade focus is the DSB's use of quantitative measures. This was particularly evident in two cases challenging exceptions to copyright and patent protection, where a state relying on the "Exceptions" provisions of TRIPS had to show three things: that the exception was "limited" (or in copyright, "special"), that it did not conflict with normal exploitation, and that it did not prejudice the legitimate interests of the right holder (in the patent provision, "unreasonably" conflict, taking into account the interests of third parties). 43 In the copyright Exceptions case, US-110(5), the DSB panel's analysis largely consisted of counting the number of establishments that could potentially rely on the challenged exception and the number of states with similar measures. 44 In the patent case, Canada- Pharmaceuticals, the panel counted the number of rights in the patent bundle that were affected by the challenged use and rejected one exception because it lacked numerical limits on its use. 45 As important, the three-part Exceptions tests for copyright and patent rights could have been interpreted as a sliding scale, which would have given states the flexibility to compensate for greater harm along one dimension by showing less harm in another. 46 But the panels held that the three parts were cumulative and that each must be satisfied individually. 47 Accordingly, once the Canada-Pharmaceuticals panel found that an exception was not limited, it never considered the other conditions mentioned in the provision. Thus, in considering a Canadian law allowing firms to stockpile generic drugs in anticipation of patent expiry, the panel never reached the last phrase, which would have allowed it to take account of the interests of patients and the healthcare system, both of which would have benefited from making affordable generic drugs available sooner. 48 To be sure, the panel approved a second measure in that case, one that allowed generic firms to conduct, during the patent term, the research needed to prove bioequivalence (that is, to show that the generic version of a drug is medically equivalent to the patent holder's product). But even here, the interest in controlling costs did not enter the analysis. Rather, the panel approved this exception upon a finding that the research output only affected exclusivity after 45. Panel Report, Canada-Patent Protection of Pharmaceutical Products, ¶ 7.33-.36, WTO Doc. WT/DS114/R (adopted Mar. 17 47. Canada-Pharmaceuticals Report, ¶ 7.20; US-110(5) Report, ¶ 6.74, 48. See DINWOODIE & DREYFUSS, supra note 38, at 80 (explaining that in not considering the last step, the panel did not appear to understand that "the Exceptions provisions [of the TRIPS agreement] were included in order to give states leeway to balance proprietary interests against access considerations."). the patent had expired and thus did not interfere with rights or interests protected under the TRIPS Agreement. 49 US-110(5) was similar. Although the United States had argued that the word "special" implied that an exception could be justified by the social interests it furthered, the panel interpreted the term "special" as equivalent to "limited." 50 And again, the panel interpreted the three-part test as cumulative. Furthermore, neither panel gave normative content to terms like "normal" or "unreasonable." 51 The DSB cabined flexibilities in other ways as well. States might have satisfied the "limited" condition by targeting particular industries. However, the Canada-Pharmaceuticals panel also cumulated other obligations imposed by the TRIPS Agreement. Thus, simultaneously with demonstrating that its exception was "limited," Canada had to show that its measure did not discriminate by "field of technology." 52 In another case on discrimination, this time on the requirement of according no less favourable treatment to the nationals of other Member States, the EC-GI panel held that both de jure and de facto discrimination were actionable. 53 Along similar lines, in Havana Club, the DSB held that even though the U.S., Cuban and other foreign holders of Cuba-derived trademarks suffered the same (negative) outcome when they tried to register their marks in the United States, the United States nonetheless violated both the national treatment guarantee (because its registration requirements treated US applicants differently from 49. Canada-Pharmaceuticals Report, ¶ ¶ 7. 54 foreign applicants) and the most favoured nation (MFN) guarantee (because the regulations treated Cubans differently from other foreigners). 54 But perhaps most surprising was the way the Canada-Pharmaceutical panel handled the TRIPS provisions on objectives and principles. 55 The Vienna Convention on the Law of Treaties requires adjudicators to interpret international agreements "in light of [their] object and purpose." 56 On the whole, the WTO has followed that approach. 57 However, the Canada-Pharmaceuticals panel agreed only that object and purpose should be kept in mind in interpreting the Agreement: it did not see these provisions as effectuating what it called "a renegotiation" of the overall balance that it thought the TRIPS Agreement had struck. 58 The promises these provisions made regarding social welfare did not, in short, dissuade WTO adjudicators from taking a literal, cumulative, and quantitative approach to interpretation. Even if states could work with the ways in which the DSB narrowed TRIPS flexibilities, TRIPS wasn't the end of the line. The United States and others have used the threat of trade sanctions to require adherence to an aggressive view of intellectual property rights. 59 And a slew of bilateral and regional trade agreements have further upped the ante, especially for pharmaceuticals. 60 Of course, it remains to be seen how these so-called TRIPS-plus agreements will be interpreted. Since many include references to TRIPS and the flexibilities that TRIPS provides, arguably the policy space left in TRIPS (such as it is) should carry over. 61 However, there are several places where norms appear to conflict, where post-TRIPS Agreements seem specifically designed to exceed the minimum standards in TRIPS, and where burdens of proof have been reassigned in ways that disfavor state interests in flexibility. 62 Moreover, in at least one situation, the United States used a certification procedure to ensure that an agreement was implemented to its satisfaction. 63 As noted by Carlos Correa, in effect on U.S. products, and such identification may in turn lead to retaliation against such country if it refuses to reform its practices satisfactorily). The European Union has adopted a similar approach, see Communication From the Commission to the European Parliament, The Council and the European Economic and Social Committee on Trade, Growth and Intellectual Property -Strategy for the Protection and Enforcement of Intellectual Property Rights in Third Countries, COM (2014) 389 final (July 1, 2014) (explaining measures to be taken against countries "that persistently break international commitments on IP rules in ways that have a major impact on the EU, and where the authorities are unwilling to cooperate or where cooperation shows limited results."). 60. 2005) (conditioning the entry into force of the agreement on the relevant countries having "taken measures necessary to comply with the provisions of the Agreement that are to take effect on the date on which the Agreement enters into force."). Similar provisions can be found in that process, the United States demanded even more than the agreement required. 64 As important, while TRIPS dispute resolution is exclusively the prerogative of Member States, many international investment agreements (IIAs) give individual investors the power to challenge national legislation before arbitral tribunals. These investor-state dispute settlement (ISDS) cases raise claims about whether national limitations on intellectual property assets constitute expropriations or denials of fair and equitable treatment. 65 Although the state won in each of the few ISDS disputes brought so far, 66 ISDS nonetheless raises serious concerns. Investment tribunals have decided many important issues on the facts, leaving key legal questions unresolved. These include questions about what constitutes a denial of fair treatment; how the value allegedly expropriated should be calculated; the evidentiary support needed to prove that a measure is consonant with the state's objectives; and, most important in terms of its impact on proposed legislation, whether a change in the law is actionable on the ground that that it was not sufficiently foreseeable to investors. 67 unanswered, the cost of defending extremely high, and the cost of losing even higher, the threat of a challenge can be enough to chill legal experimentation. 68 ISDS is also problematic because the relationship between investment guarantees and other obligations is unclear. Some observers see the minimum standards in TRIPS as imposing limits on investors' legitimate expectations. 69 However, most IIAs explicitly make TRIPS compliance a defense only in specified, narrow circumstances. 70 Thus, it may be that even if the DSB were to accept that a state had acted within a TRIPS flexibility, the state might still be at risk of an ISDS challenge. Compounding the problem, although states sometimes have reasons to desist from challenging the laws of other countries in the WTO, investors do not necessarily have the same compunctions. They may bring challenges that a state would not assert because, for example, it wants to preserve the flexibility at issue or because it is wary of public reaction. 71 For the most part, the obstacles imposed by TRIPS and other substantive instruments are well recognized. Less appreciated is the substantive impact of procedural agreements. As described above, the Paris Convention largely tackled procedure and did not impose substantive obligations to offer patent protection. 72 While developing countries strongly resisted subsequent attempts in WIPO to negotiate a substantive agreement, they did not oppose procedural convergence. Indeed, many likely considered it benign, if not helpful. For example, the Patent Cooperation Treaty (PCT) allows inventors to begin the process of acquiring multinational rights with a single application, reviewed in a single patent office. 73 That office (called an International Searching Authority or ISA) identifies prior art (technical knowledge and information) relevant to determining whether the invention is novel and inventive and provides a written opinion on its patentability. The inventor can also ask for a supplementary search and assessment from a second ISA. Ultimately, every country in which protection is sought must review the application, but the ISA analyses can save them both money and examiner effort. The PCT and subsequent procedural instruments are, however, something of a double-edged sword. 74 While they save examining office resources, they also make it much easier for inventors to apply for protection in multiple countries. As a result, inventions that might have once gone into the public domain in some countries may now be patented there. 75 Equally important, the increase in applications has led patent offices, and the governments that must pay for them, to continually strive for more efficient processing. The outcome has been convergence on substantive law outside the channels in which harmonizing efforts are usually considered, debated, and contested. The PCT furnishes one mechanism: the patent offices in some countries appear to be saving their resources by accepting the analyses provided by the ISAs. But ISA examinations cover only matters typically found in national laws; when a country's national office defers to them, it is essentially ignoring any unique provisions that the country may have enacted to further its own interests. 76 Another avenue derives from the promises that the WTO and WIPO have made to "build capacity" (by which they mean the capacity to examine applications) through training programs. 77 Many developing countries accepted the offer for training, and, as Peter Drahos has found, the trainees are frequently placed in the patent offices of developed countries. 78 There they are socialized to favor the law they observe, not the law of their own jurisdictions. When they go home, it is not always certain they will apply provisions unique to their national legal system. 79 79. Drahos, supra note 78, at 167 (explaining that, since "developing country patent offices have, over a long period of time, been steadily integrated into an emerging system of global patent administration . . . they will be disposed to behave in ways that are likely to be pro-patent."). backlog of applications. It operates by "fast tracking" applications that have already been examined in one participating patent office. 80 Subsequent examiners then use the first office's work product to make their own determinations. Outcomes have yet to be carefully studied, but to have a significant effect on backlogs, substantial deference to the first jurisdiction's law is likely occurring. 81 More informally, the five largest patent offices (IP5) meet on a regular basis to find ways to avoid unnecessary duplication of examining effort. 82 That includes finding substantive differences-and working to harmonize them. 83 In addition to these "bottom up" forms of convergence, the proliferation of patent applications has had a "top down" effect. Several regions have pooled their examination efforts by establishing a single patent office, operating under agreed standards of patentability. The European Patent Convention (EPC) is the best known. It is implemented by the European Patent Office (EPO), which examines applications on behalf of thirty-eight states, including all the members of the European Union, as well as a few "validation" states (states that are not members of the EPC, but accept EPO determinations). In Eurasia, several of the former members of the Soviet Union have a similar arrangement, while in Africa there are two systems, one for Anglo-and the other for Franco-phone countries. 84 Efficiency considerations have produced other changes in national law as well. Novelty and disclosure furnish two examples. Novelty requirements can be implemented in one of two ways: the absolute approach bases determinations of whether an invention is new (and by extension, inventive) on the differences between the invention and every piece of art available anywhere in the entire world. In contrast, a relative standard considers only material that is reasonably available to local artisans. Examination on an absolute standard is easier for an ISA because it is not required to consider the application on a country-by-country basis, to determine which art is locally accessible. Accordingly, if nations wish to save resources by deferring to an ISA, they are better off switching from relative novelty to an absolute approach. Indeed, the United States made precisely that change in 2011. 85 The disclosure requirement demands that the inventor include in the patent information sufficient to teach others in the field how to make and use the invention. 86 Even if multiple methods exist, only one need be disclosed. Nonetheless, at one time, some countries required more: that the inventor disclose the preferred way to carry out the invention. 87 As noted in Part II, countries seeking to build capacity tend to consider four strategies: encouraging fair following, promoting local production, supporting adaptation, and establishing protective regimes for local innovations. As the space to pursue innovative policy solutions was constrained by the developments discussed above, it has become increasingly unclear whether any of the four remains available. Fair following presents a viable strategy for developing technological skills if the following is indeed fair and if there are places to sell the goods produced. India, for example, developed a vibrant generic drug industry before it was required by TRIPS to enact protection for pharmaceutical products. Multiple firms could compete on the development of manufacturing processes (which were patentable). That competition reduced the cost of producing pharmaceuticals and, as a result, lowered the price at which drugs could be profitably sold. India became known as the "pharmacy to the world" by selling in other countries where the drugs it manufactured were also unpatented. 89 With its extensive experience manu- 89. There is an extensive literature on the impact of the TRIPS Agreement on the Indian pharmaceutical industry. See, e.g., Atsuko Kamlike, The TRIPS Agreement and the Pharmaceutical Industry in India, 32 J. INTERDISCIPLI-NARY ECON. 95 (2020) (exploring "how the TRIPS Agreement is influencing the Indian pharmaceutical industry and discuss[ing] the industry's growth facturing generics, the Indian pharmaceutical industry developed considerable expertise and is now successfully cultivating a proprietary sector. 90 The flexibilities that were available to India are much harder to find under the current regime. TRIPS now requires protection for all inventions (including pharmaceuticals), 91 and the PCT has made it easier for inventors to patent their advances throughout the world. To be sure, India managed to preserve some flexibility to continue manufacturing modern pharmaceuticals. It redefined what constitutes an "invention," deeming most new forms or new uses of known material to be unpatentable. 92 Its law was not challenged in the WTO (even though it was used to invalidate the patent on a lucrative treatment for leukemia), in part because TRIPS leaves definitions of its terms to national legislation. 93 But that latitude cannot be unlimited because if it were, countries could use clever definitions to avoid all their international obligations. Should a provision like India's be subject to a WTO dispute, the DSB may well count how many countries have similar measures and how many advances patented elsewhere would be unpatentable under the challenged provision. To pass muster, the types of advances left available for copying might be so few and so close to the line of uninventive that copying would not be profitable or provide significant training opportunities. A country seeking more space for fair following could also try limiting its approach to specific industries, but that strategy would likely be barred as discriminating by field of technology. Even if a country were successful in a TRIPS challenge, there would be other problems. Success at expanding policy space may lead to new TRIPS-plus demands. For example, recent bilateral agreements focus directly on ensuring that other countries cannot adopt India's definition of invention. 94 Moreover, states that have investment obligations may be wary of enacting new limits on the ability of investors to obtain protection. Indeed, in one of the previously mentioned ISDS disputes, the pharmaceutical company Eli Lilly challenged a Canadian provision that raised the utility requirement and thus made it harder to acquire a patent. Lilly claimed that the modification undermined its expectations and was therefore unfair and inequitable. 95 Although Canada ultimately prevailed, it did so partly because Lilly could not prove that the Canadian law changed dramatically. 96 Presumably, a rapid change in the law could provoke a different result. Moreover, the litigation was extremely expensive: Canada laid out CDN $6 million and was reimbursed only 75 percent of that sum. 97 Not every country can afford to mount a similarly costly defense. Finally, even if a unique provision survives these challenges, there is a question whether examiners inundated with applications will have sufficient resources to implement it. With the near-universal rejection of the best mode requirement in patent law, fair following is also harder to accomplish. Freed of that requirement, innovators can now rely on secrecy to prevent competitors from learning the most effective ways to manufacture their products. While a country could attempt to force the transfer of technologies kept as trade secrets, TRIPS requires protection for undisclosed information and-unlike for patent law-it does not include a provi-94. See, e.g., KORUS, supra note 70, art. 18.8.1 (emphasizing that "each Party confirms that patents shall be available for any new uses or methods of using a known product"). 95 sion allowing WTO members to make exceptions. 98 In addition, unilateral pressures and TRIPS-plus agreements have led many countries to increase trade secrecy protection. 99 Attempts to impose a stronger disclosure requirement would also risk ISDS challenges. As to markets, a country could hope that if it is successful in defending fair following, other countries will adopt similar legislation and thus open their markets to the goods the fairfollower produces. However, that requires other countries to withstand pressures to increase protection. Since the TRIPS Agreement excludes parallel importation from the scope of dispute resolution, it may be possible to market in ways that take advantage of that provision. 100 However, TRIPS calls parallel importation "exhaustion," which the DSB may take to imply that importation is permissible only when the patent owner has exhausted its rights (for instance, by receiving compensation). Besides, subsequent TRIPS-plus agreements have already started to narrow this option. 101 Developing countries have traditionally used a local working requirement to force patent holders to create jobs and opportunities that enable locals to develop both technological 98. Indeed, the European Union has filed a complaint against China for forcing technology transfer, China -Certain Measures on the Transfer of Technology, WT/ DS549/6 (consultations requested, June 1, 2018), https:// www.wto.org/english/tratop_e/dispu_e/cases_e/ds549_e.htm [https:// perma.cc/DQJ6-895F]. However, the issue has not been resolved. 99. TRIPS, supra note 6, art. 39; see also Rochelle Cooper Dreyfuss, The Rise (and Fall?) of Trade Secrecy Protection, ALTI FORUM (June 15, 2022), https://alti.amsterdam/dreyfuss-trade-secret/ [https://perma.cc/A7GK-9NMM] (discussing reasons for the dramatic rise in secrecy protection in the last decade). 100. TRIPS, supra note 6, art. 6. 101. See, e.g., The Australia-United States Free Trade Agreement, U.S.-Austl., art. 17.9.4, May 18, 2004, 43 I.L.M. 1248 (stating that "[e]ach Party shall provide that the exclusive right of the patent owner to prevent importation of a patented product, or a product that results from a patented process, without the consent of the patent owner shall not be limited by the sale or distribution of that product outside its territory, at least where the patentee has placed restrictions on importation by contract or other means."); Dreyfuss & Frankel, supra note 67, at 569 (nothing other attempts to limit parallel importation). expertise and business acumen (to "learn by doing"). 102 However, this strategy is also endangered. While, as noted above, a provision allowing states to require local working was incorporated into TRIPS through its reference to the Paris Convention, strong arguments have been made that other parts of TRIPS extinguish this flexibility. 103 As we saw, Canada-Pharmaceuticals put considerable emphasis on one of the nondiscrimination guarantees in the patent section (nondiscrimination by field of technology). That section also bars discrimination as to "whether products are imported or locally produced." 104 Since a local working requirement distinguishes by the locus of manufacturing, it would arguably violate that obligation. Nonworking might also be defended as a measure to prevent abuse. TRIPS permits such measures-but only if they are consistent with the rest of the Agreement. 105 Since adjudicators are inclined to cumulate TRIPS standards, they may also regard a local working requirement as inconsistent with the extensive conditions on permitting unauthorized use. As noted at the outset, modern technologies are often illsuited to the needs of developing countries. 107 During the COVID-19 pandemic, the problem was storage, but myriad other conditions (climate, terrain, soil, electrification) can prevent countries in the South from easily using technological products in the same form as they are offered in the North. 108 Northern inventors could adapt their inventions to local needs, but it may not always be worth their effort to do so. Allowing inventors in the South to step in not only solves the last-mile problem, it also creates jobs and training opportunities that may be more enduring and educational than the strategies described above. But there are several problems. One is disclosure: the more that inventors are allowed to rely on trade secrecy, the less that adaptors can learn about the details of the inventions they wish to adapt. Even with disclosure, adaptation will likely require experimentation. If the invention is locally patented, the adapter will need either the right holder's permission-which could easily be withheld-or legislation that exempts experiments from the scope of patent rights. As we saw, in Canada-Pharmaceuticals, the DSB approved a research exemption. However, it emphasized timing: the exception affected the de facto exclusivity available after patent expiration. 109 It would be harder to justify a research exemption with effects during the patent period. While the DSB might find the prevalence of research exceptions in many WTO members persuasive of TRIPS compatibility, those exceptions usually allow researchers to learn about the invention. 110 Adjudicators may be more skeptical of research aimed at altering the invention for local use. To defend such an exception, it may be necessary to ensure that the scope of the underlying patent is interpreted to cover the adaptation-that is, to ensure that the patentee is paid in cases where the adaptation cannibalizes the market for the original invention. That approach will, however, mean that adaptation is likely to be expensive. Local innovators will be required to consider the cost of doing the research and paying royalties. Moreover, they will probably have to underwrite the expense of educating unsophisticated consumers, suppliers, and maintenance organizations about the benefits of the product and absorb customers' switching costs. To recoup these heavy investments, adapters will therefore likely need exclusive rights of their own. However, acquiring that protection may be difficult. Even if the underlying invention is not available locally, patented locally, or described in a local publication, it will be considered in the prior art under an absolute novelty standard. If the adaptation is incremental, it may well not be considered novel or inventive over that art. In other words, local inventors can be caught in a novelty trap created by art that is inaccessible or unusable locally. 111 Countries could create a lower-tier patent regime to protect this type of invention. For example, they could offer petit patents to incremental advances on a relative novelty standard. The Paris Convention envisions the adoption of utility model and industrial design regimes and TRIPS allows WTO members to offer more protection than the Agreement requires. 112 The availability of protection for adaptations may encourage the holders of the patents on original inventions to develop adaptations themselves. That would solve last-mile-type problems, but it would not advance the capabilities of local innovators. To ensure that it is local innovators who benefit 111. For a more detailed discussion of the novelty trap, see Novelty Traps, supra note 22, at 443-46 (explaining that, because of the novelty trap, "no country will award a utility patent to an invention that was disclosed in, or rendered obvious by, prior art available anywhere in the world."). 112. Paris Convention, supra note 25, art. 1; see also TRIPS, supra note 6, art. 1 (stating that "[m]embers may, but shall not be obliged to, implement in their law more extensive protection than is required by this Agreement."). from the regime, a developing country may try to shelter them from crowding out by more technologically adept foreigners by making the new regime available only to domestic inventors. Many developed countries once took an essentially similar approach by simply delaying patent awards to foreigners and by issuing them very narrow claims. 113 That type of informal differentiation would be harder for countries that defer to examiners in other countries, be it through the PCT, the PPH, or another mechanism. In addition, a formal system of lower-tier protection for locals could easily be challenged in the WTO as a violation of the guarantee of national treatment. The same protection could instead be offered to nationals of all developing countries, but such a measure could run afoul of the MFN obligation. Furthermore, in ISDS, differential treatment might be considered a denial of fair and equitable treatment, or a denial of a separate nondiscrimination guarantee. Thus, this strategy, like the others discussed, may be difficult to implement under the international intellectual property regime as it is currently understood. As the COVID-19 pandemic demonstrated, when framed as a matter of access, the clash between intellectual property rights and human rights can have deleterious consequences. It limits the poor to advances that suit the well-heeled and makes the South dependent on the North. But the previous discussion shows that there is also a normative dimension: conceptualized this way, the question about access is perceived as distributive, a choice between awarding the gains from innovation to those who invented or to those who want access. In the absence of empirical evidence on how much is needed to incentivize innovation, it is easy to understand decisions to side with inventors. After all, without them, the innovations at issue may not have existed. 114 In contrast, conceiving of the right to scientific advancement as a right to do science makes it clear that users are not in it to get something for nothing (or on the cheap), but rather to become innovative in their own right; to satisfy their own technological needs and to make their own contributions to the world's knowledge base. Support for a right to do science also resonates with the North's growing concerns for its own technological resilience. 115 Furthermore, allowing states to build technological capacity would make the patent system more just: it would equalize the opportunity of every state to solve problems of global dimensions and to reap the monetary and reputational benefits from having done so. Of course, this view can have an impact on the freedom to enact catch-up strategies only if a right to engage in the scientific enterprise is recognized, the interpretive approach to the TRIPS Agreement is revised, and the moves toward substantive convergence abate. A threshold question, then, is whether there is a human right to participate in science. Although the UDHR and related laws are generally seen as focusing on access interests, international law has been nibbling on the edges of a right to do science. Recent claims are of two types: a right to acquire the capacity to participate and a right to be recognized for participating. In the human rights space, Farida Shaheed, the United Nations Special Rapporteur in the field of cultural rights, examined the interface between the rights of authors and inventors on the one hand, and the rights of the public on the other. 116 In her Report on patent law, she emphasized access rights, but put on an equal footing "opportunities for all to contribute to the scientific enterprise and freedom indispensable for scientific research." 117 The Report went on to recognize the dignitary interests associated with a right to participate in science and receive the benefits of science and the right to further develop technologies. 118 It also stressed the importance of reading flexibilities into international law that allow states to invest in science and enact rules that facilitate research and the adaptation of known technologies. 119 Shaheed further noted other developments, including the United Nations Declaration on the Rights of Indigenous Peoples, which recognizes rights to "develop [indigenous] intellectual property," and the efforts at WIPO to create a legal instrument to protect the contributions made by traditional knowledge. 120 Several years later, the United Nations Committee on Economic Social and Cultural Rights followed up with a detailed study of the right to science as it is promulgated in the International Covenant on Economic, Social, and Cultural Rights. 121 The Report focused heavily on state obligations to ensure access to the benefits of science, prevent discrimination regarding education and research opportunities, support research aimed at the needs of the disadvantaged, and protect freedoms of inquiry and expression. However, it also argued that there can be no "rigid distinction between the scientist who produces science and the general population, entitled only to the benefits derived from [the scientists'] research." 122 Thus it maintained that the right to participate in culture must include the right to take part in decisions regarding science and, 117. Patents Report, supra note 116, para 12. 118. Id., paras. 26, 75 & 110 (discussing the problems of blocking research, the development of products, the enactment of public interest legislation, and the goals of ensuring research independence, freedom to publish, and meeting survival needs). 119. Id., paras. 63-72 (explaining several flexibilities to patents that states can use when implementing multilateral treaties, especially when implementing the TRIPS Agreement). 121. ICESCR, art. 15; see generally ICESCR Report, supra note 16 (explaining the relationship between science and economic, social and cultural rights embodied in article 15 (1) (b), (2), (3) and (4) of the ICESCR). by extension, the right to "develop . . . the critical mind and faculties associated with doing science." 123 It therefore concluded that states have a duty to create an "enabling and participatory environment" through, among other things, financial support, fostering the "positive effects" of intellectual property on scientific progress, and international technical cooperation. 124 Like Shaheed's study, the Committee also stressed the importance of recognizing the intellectual contributions of indigenous people. 125 Along similar lines, the United Nations' Draft Resolution on Population and Sustainable Development emphasized "technology transfer and capacity-building for adaptation so as to respond to the needs of developing countries." 126 There are analogous moves within the international intellectual property realm. The UDHR's recognition of rights to "participate in the cultural life" and to an education have obvious implications for copyright. 127 Thus, Lea Shaver has suggested that these rights impose a duty on governments to provide access to the copyrighted reading material needed to educate and build the capacity to participate. 128 Similarly, Margaret Chon has argued that the intellectual property regime must include a substantive equality principle. In her view, this creates an imperative to allow the use of protected materials in ways that promote the flourishing of human capacity and respect for dignitary interests. 129 Significantly, increased recognition of the human rights to read, learn, and participate in culture led to the adoption of the Marrakesh VIP Treaty on Access for the Visually Impaired in 2016. 130 In WIPO's words, that agreement provides persons with print disabilities "opportunities for professional growth, allowing them to contribute to their local economies and become economically self-sufficient." 131 With the advent of digital technologies, there is also a growing literature on establishing international recognition of a right to conduct online research. 132 On the technology front, the international community has not usually denominated participation claims as sounding in human rights. Nonetheless, it has recognized the concerns identified by Shaheed. At WIPO, a Development Agenda includes recommendations addressed to technology transfer, flexibilities, and public policy. 133 There are also ongoing negotiations for an agreement to protect traditional knowledge. 134 For its part, the WTO issued two Declarations in the wake of Canada-Pharmaceuticals-a Ministerial Declaration and a Declaration on the TRIPS Agreement and Public Health ("the Doha Declaration"). 135 With respect to patents, both were primarily concerned with ensuring access to medicines, but they had a dynamic focus as well. The Ministerial Declaration emphasized the importance of research and development. It also acknowledged the obligation to protect traditional knowledge. 136 The Doha Declaration recognized the problems posed by the lack of technological and manufacturing capacity and reaffirmed a commitment to technology transfer. 137 After these Declarations, the WTO amended TRIPS so that, among other things, developing countries could collaborate in establishing their own manufacturing facilities. 138 Moreover, a waiver of TRIPS was eventually adopted, thereby implicitly recognizing the capacity of countries to manufacture COVID-19 vaccines. 139 National laws have followed a similar path. US commentators have located a right to engage in scientific collaboration within the First Amendment. 140 The First Amendment has also been used to support the exclusion of the building blocks of science from the scope of patent protection. 141 Many jurisdictions are also considering a right to repair, which would ensure that consumers can experiment and alter products for their own needs. 142 Some of these measures also mandate disclosure of material, such as software, diagnostics, and repair manuals, that might otherwise be kept as trade secrets. 143 As in the international sphere, there is also increasing interest in interpreting domestic laws to allow data mining research. 144 Although not always articulated as a right to do science, the exclusions and defenses found in national intellectual property laws implicitly recognize the right to learn, tinker, conduct research, and build compatible products. 145 Graeme Dinwoodie and I have suggested that these principles constitute an international acquis that furnishes a public-regarding counterweight to the proprietary focus of the TRIPS Agreement; 146 they can equally well be understood as supporting a human right to participate in intellectual production. If human rights were understood to include a right to participate in science, the impact on the interpretation and development of domestic and international law would be significant. It would both encourage and empower states to adopt the catch-up strategies discussed above. To be sure, understanding human rights to include a right to do science would increase TRIPS flexibilities only if the DSB were also to shift its approach to interpretation. But here, too, the Declarations issued after Canada-Pharmaceuticals should make a difference. In stressing that the TRIPS must be read "in a manner supportive of public health," 147 the Ministerial Declaration intimated that the DSB must reconsider how it construes the Agreement. The Doha Declaration supplied furgroups/intellectual_property_law/publications/landslide/2022-23/december-january/right-repair-competition-intellectual-property/ [https:// perma.cc/2L78-SR54] (exploring the right to repair under antitrust law and its relationship to intellectual property protection). 144 ther details. It acknowledged the importance of the objectives and principles articulated in TRIPS to interpreting the Agreement's obligations; 148 recognized that there are WTO members with unique concerns; reaffirmed a commitment to technology transfer; and emphasized various flexibilities, including the right of each member to self-determination on issues such as when compulsory licenses should be granted, what constitutes an emergency, and the contours of rules on exhaustion. 149 While the status of the Doha Declaration under international law remains unclear, 150 the DSB has cited it. In Australia-Plain Packaging, the objectives and principles of TRIPS were used to approve restrictions on how trademarks are displayed on tobacco products. 151 The Ministerial and Doha Declarations were motivated by health concerns. However, their qualitative focus and emphasis on using TRIPS' principles and objectives to guide interpretation should make strategies to enable participation in science easier to defend. Thus, it seems clear that under the Doha Declaration, the three steps in the Exceptions tests must be viewed holistically to ensure that, in the patent context, the interests of third parties are fully taken into account. If they were, then the ability of a nation's citizens to learn, train, conduct research, and reach a place where they can further the needs of their own people would be balanced against the proprietary interest of patent holders to control all uses of their innovations. To the extent that patent holders fail to respond to a country's technological challenges or do not supply adequate amounts of critical materials, the right to adopt strate-148. Doha Declaration, supra note 135, ¶ 5(a). 149. Id., ¶ ¶ 1, 7, 5(b), (c), and (d). 150. Appellate Body Reports, Australia -Certain Measures Concerning Trademarks, Geographical Indications and Other Plain Packaging Requirements Applicable to Tobacco Products and Packaging, WT/DS435/AB/R, WT/DS441/AB/R (June 9, 2020), para. 6.626 (stating only that the Doha Declaration " 'bears specifically' on the interpretation of each provision of the TRIPS Agreement."). 151. Id. To be sure, both the panel and the Appellate Body closely scrutinized the evidence on whether the restrictions would reduce the use of tobacco, id. at paras. 6.41-6. gies that promote self-reliance would appear compelling, or at least not an "unreasonable" intrusion on the "legitimate" interests of right holders. By the same token, were the DSB to stop counting things and begin to consider the impact of exceptions and limitations qualitatively and in light of the goals of improving social welfare and promoting technological development, it would likely approve a state's definition of invention that expands opportunities for fair following-even if it leaves a measurable set of advances patented in the North locally unprotectable. 152 Similarly, the Doha Declaration's reference to exhaustion suggests that a scheme intended to expand markets is also acceptable. Moreover, doubts about the survival of the Paris Convention's provision on local working should disappear once its strategic importance in furthering a human right to acquire technological capacity is taken into account. 153 More generally, the recognition of a right to do science would bring into focus the DSB's problematic approach to discrimination. As Dinwoodie and I have argued, the hard line that the DSB currently takes to the antidiscrimination provisions in the patent section of TRIPS is unwarranted. 154 Turning these guarantees into cornerstone requirements that apply to all other provisions in that section is incompatible with the overall structure of the Agreement, which articulates generallyapplicable requirements at the outset. Overenthusiastic application of these provisions can also prevent states from targeting "sectors of vital importance . . . to technological development." Since that practice is specifically listed in the TRIPS principles, 155 impediments should not be layered on top of the Exceptions tests or imposed on top of the nonworking rule incorporated through the Paris Convention. Thus, measures designed to take advantage of existing capacities and local re- sources relevant to particular sectors ought to be considered valid approaches to improving technological capacity. Admittedly, the national treatment and MFN obligations are somewhat different in that they are cornerstones: "fundamental principle[s] of the world trading system." 156 Thus, the DSB has equated the national treatment provision in TRIPS to Article III:4 of the GATT and claimed that the jurisprudence under that Article demands strict scrutiny of intellectual property measures that discriminate by nationality. 157 Lost in this analysis is an important limit on the GATT guarantee: it only requires equivalent treatment of "like" products. 158 By its terms, TRIPS applies to all nationals. However, as the United Nations Conference on Trade and Development (UNCTAD) put it during the failed negotiations over SPLT, "[E]quality of treatment only makes sense when the parties involved are in a general way equal; when they are not, equality of treatment simply gives the stronger party unlimited freedom to utilize his power at the expense of the weaker party." 159 In claiming a right to develop scientific capabilities, a country would provide the DSB with an opportunity to consider whether lingering differences in technological capacity should be taken into account in TRIPS jurisprudence. Were it to relax its approach, measures that enable catching up should pass muster, even if they are extended only to local inventors (or only to inventors from countries that are behind the technological frontier). 156. Havana Club Report, para. 233. 157. See id., para. 242 (stating that "the jurisprudence on Article III:4 of the GATT 1994 may be useful in interpreting the national treatment obligation in the TRIPS Agreement"). 158. GATT art. III:4 ("The products of the territory of any contracting party imported into the territory of any other contracting party shall be accorded treatment no less favourable than that accorded to like products of national origin in respect of all laws, regulations and requirements affecting their internal sale, offering for sale, purchase, transportation.") (emphasis added). Indeed, considerable ink has been spilled on questions of likeness, see SIMON KLOPSCHINSKI, CHRISTOPHER S. GIBSON The DSB should be even less concerned about a violation of the MFN provision. As with national treatment, the GATT provision is limited to like products. 160 And as Dinwoodie and I have noted, prior to TRIPS this guarantee was not a part of international intellectual property law; it was considered inappropriate in that context because differences in treatment are inevitable when there are disparities among national infrastructures supporting innovation. 161 Thus, we suggested that the DSB limit its scrutiny to examining the reasons for differences in treatment and the fit between the measure and its justification. 162 A justification for differential treatment that is grounded in technological inequality and that is intended to equalize the capacity to do science ought, under that approach, to be considered TRIPS-compatible. Surviving a TRIPS challenge would not be enough to defend the strategies developing countries use to catch up to the technology frontier. As noted earlier, TRIPS-plus agreements introduce new requirements and IIAs add new guarantees. Recognizing a human right to participate in the scientific enterprise would, however, have an impact here as well. In a comparative study of the success of TRIPS-plus efforts in Latin America, César Rodríguez-Garavito and I, with the help of national collaborators, found that well-articulated norms grounded in a human rights narrative can successfully block the adoption of new commitments to patent protection or can soften the ways in which such commitments are implemented locally. 163 The Latin American study focused on the right to 160. GATT, art. I:1 ("any advantage, favour, privilege or immunity granted by any contracting party to any product originating in or destined for any other country shall be accorded immediately and unconditionally to the like product originating in or destined for the territories of all other contracting parties."). 161 health; a narrative centered on self-sufficiency and a wish to contribute to the world's knowledge base could be equally, if not more, powerful. It is better targeted at patent obligations than the right to health, which the study showed was sometimes used to support demands for more doctors and hospitals rather than access to medicine. 164 As important, a right to do science replaces the something-for-nothing framing with a conceptualization that has the potential to benefit everyone. Developing capacity in the South would also make the international patent system more just. It would give inventors all over the world the opportunity to be the first to invent needed advances and provide them with compensation and recognition for having done so. Recognizing a human right to do science might also address other frustrations voiced by the South. It could lead to greater appreciation for technological achievements accomplished through methodologies different from those used in the North: through long-term and careful observation and incremental development by groups, rather than by identifiable individuals in technical leaps sufficient to constitute an inventive step. Recognition of a right to participate in science might therefore expedite the adoption of the long-negotiated convention on traditional knowledge and bring an end to the perception that the present regime favors the North at the expense of the South. 165 Recognizing that others do science might also promote more collaboration among inventors in provide the legal hooks for effective contestation [against new commitments to patent protection]"); see also Molly Land, Human Rights Frames in IP Contests, id., 276-286 (finding that "intellectual property contestations were framed more frequently in terms of consumer's rights, dignity, free competition, the environment, and the rights of the poor"). See also Laurence R. Helfer & Karen J .Alter, The Influence of the Andean Intellectual Property Regime on Access to Medicines in Latin America, id., 247 (noting other supranational norms that influence the national implementation of international intellectual property obligations). the North and South. 166 Furthermore, it would lend support to the Inclusive Innovation Movement, which fosters relationships among differently-credentialed innovators in the name of expanding the storehouse of scientific knowledge. 167 As to IIAs, deemphasizing the "something for nothing" view should reduce the probability that ISDS tribunals will see measures that promote technological capacity as expropriations. Once again, the right to health is illustrative of the potential impact. In one dispute, an ISDS tribunal held that measures aimed at protecting public health are an exercise of police powers and can therefore never constitute an expropriation. 168 Furthermore, recent IIAs have specifically excluded measures taken to further public health from the scope of the guarantee against expropriation-or even from the scope of ISDS. 169 Again, a right to do science is significantly different from a right to health. However, eliminating technological dependency is surely a public interest concern of the highest order. Similarly, measures justified as efforts to equalize technological capacity should be considered fair and equitable. Or put another way, if technological self-sufficiency were considered a human right, investors could not claim a legitimate interest in preventing states from enhancing capacity to engage in the scientific enterprise. The cost of maintaining a patent office and, in particular, the need to devote local technological expertise to examination, means that developing countries will continue to be motivated by efficiency concerns. They will remain tempted to adopt international norms, defer to foreign examiners, join re- gional agreements, or base protection on foreign law. 170 However, they may feel differently once the slide to convergence is recognized as undermining the effort to protect the fundamental right to participate in science. Significantly, several countries in the European Union are currently resisting the region's attempt to adopt a unitary patent regime, despite the efficiency gains it presents. In part, their objections may be grounded in public-regarding considerations that they see as trumping efficiency objectives. 171 There are also solutions to efficiency challenges that preserve national policy space. For example, many countries include opposition procedures in their patent regimes. These give challengers a period of time to demand that a patent office reconsider its patentability determination. 172 They are effective at conserving examiner resources because opposition is attractive mainly when the challenged advance is socially important and would be unpatentable by reason of a unique feature of the local law-one that a foreign examiner may not have considered. Once again, the right to health furnishes an example of how this approach works. As discussed earlier, India has a special definition of "invention" that denies protection to certain types of incremental improvements. Health activists such as I-MAK use oppositions to ensure that India's unique definition is applied when important pharmaceuticals 170. Significantly, none of the countries that have signed validation agreements with the EPO-Morocco, Moldova, Tunisia and Cambodia-are technologically developed. 171. See, e.g., Kluwar Patent Blog, Despite the Defeat at the CJEU, Spain Will Not Join the Unitary Patent System (June 17, 2015), http://patent-blog.kluweriplaw.com/2015/06/17/despite-the-defeat-at-the-cjeu-spain-willnot-join-the-unitary-patent-system/ (describing Spain's concern that the decision not to translate Unitary Patents into Spanish will make the information less available to local inventors). See also Dimitris Xenos, The European Unified Patent Court: Assessment and Implications of the Federalisation of the Patent System in Europe, 10 SCRIPTED 246, 253-56 (2013) (describing the loss of national sovereign authority to adjust policies in light of local needs). 172. See, e.g., 35 U.S.C. § § 321-29 (describing the procedure for filling a post-grant review); EPC, arts. 99-101 (describing the procedure for filling a notice of opposition to a patent). are examined. 173 At one point, Brazil's national health agency, ANVISA, performed a somewhat similar function. 174 The South could also take a page out of the North's playbook: Amy Kapczynski has suggested ways that developing countries should cooperate with one another. 175 They could develop common patentability standards better attuned to their own needs, such as a relative novelty standard, a best mode requirement, or a lower tier of protection. Similarly, they could train examiners in their own patent offices and implement their own versions of the PCT, PPH, and IP5. As Caroline Ncube has described, countries on the African continent are already considering a pan-African agreement that is more closely tailored to local interests than the patent laws they enacted in the immediate aftermath of the TRIPS Agreement. 176 The human right to "share in scientific advancement," has been understood as a right of access to the scientific achievements of others. This framing plays an important role in supporting exceptions and limitations to proprietary rights that increase the distribution of critical resources. Moreover, it encourages philanthropy and other efforts to supply technological advances to the poor. However, the focus on access also has several rather dubious consequences. It leads to technological dependency without any assurance that the poor will receive adequate supplies of critical technologies. It also leaves in place an innovation agenda that is dominated by the wishes of the better off. A view that includes the right to participate in science creates a more compelling narrative. Instead of de-173. See Kapczynski, supra note 89, at 1599 (stating that grounds for pregrant opposition include "the contention that the invention does not meet the statutory requirements for novelty and inventive step"); I-MAK, https:// www.i-mak.org/ [https://perma.cc/4VLF-M2MY]; see also Sampat & Amin, supra note 76, at 752 (describing how HIV/AIDS patent applications were rejected through "opposition" procedures started by third parties). 174. manding something for nothing, it suggests that in exchange for greater policy space, everyone will enjoy more diverse sources of creative production and that opportunities to invent will be available to all. There are aspects of international and national law that accept how critical participation in science and culture is to human flourishing; that understand the imperative to develop capacities to solve technological problems, adapt foreign solutions, and assure adequate supplies; and that appreciate alternative methods of contributing to the world's knowledge base. Recognizing a human right to do science would unite these diverse elements into a coherent account. It would force the WTO to rethink its crabbed interpretation of the TRIPS Agreement, lead the North to reconsider its demands for everstronger protection, and draw needed attention to the impact of procedural developments on substantive law. In the aftermath of the pandemic, developed countries have engaged in efforts to ensure their own technological self-sufficiency in critical sectors. International obligations should be understood to permit developing countries to adopt catch-up strategies that would allow them to do the same. 22 19. See, e.g., 20. See generally J.H. Reichman, From Free Riders to Fair Followers: Global Competition under the TRIPS Agreement, 29 N.Y.U. J. INT'L L. & POL.

JANIS, AND MARK A. LEMLEY, IP AND ANTITRUST: AN ANALYSIS OF ANTITRUST PRINCIPLES APPLIED TO INTELLECTUAL PROPERTY (Aspen Law & Business 2002) (examining how intellectual property licensing agreements can raise antitrust issues); James Thuo Gathii, Construing Intellectual Property Rights and Competition Policy Consistently with Facilitating Access to Affordable AIDS Drugs to

2023] HUMAN RIGHTS IN A TECHNOLOGICAL AGE 585

IV. A HUMAN RIGHT TO PARTICIPATE IN SCIENCE

B. The Impact on International Intellectual Property Law

22 19. See, e.g., 20. See generally J.H. Reichman, From Free Riders to Fair Followers: Global Competition under the TRIPS Agreement, 29 N.Y.U. J. INT'L L. & POL.