North-South Agreements on Trade and Intellectual Property beyond TRIPS: An Analysis of US Bilateral Agreements in Comparative Perspective

This article lays out qualitative and quantitative information of the extent of intellectual property (IP) protection reached by industrial property related sections of US bilateral trade agreements (TAs) agreed during 2000 decade. The paper classifies IP protection provisions of such TAs. Their extent of protection is measured through the identification of 'shall+' commitments, i.e. compulsory commitments that imply protection beyond WTO-TRIPS benchmark. The metrics built highlight the fact that despite significant similarities in structure and content found across TAs, there is a notable dispersion in the extent of protection they contain. Indices produced show that pharmaceutical provisions comprise a significant part of 'shall+' commitments of such agreements. This finding supports the hypothesis of pharmaceutical industry's success in setting the agenda for US international trade and IP policy(1) and the role that IP protection plays in such industry.(2, 3) The extent of IP protection is highly correlated across IP categories and they reveal that Chile agreed to the lowest number of such commitments, whilst Oman and CAFTA agreed to the greatest number of such provisions. Duration of negotiations appears to be negatively and significantly correlated with indices for patent and data protection for pharmaceuticals. This finding suggests that such provisions indeed became the core of the negotiations, and countries that strove to limit their inclusion, succeeded partially.