It Takes Two to Tango. Patents and Markets in the Periphery and the Centre. Prebisch Dancing with Hilty

Since 1995, the TRIPs Agreement has provided an international framework for domestic patent law. Reto Hilty and the Max Planck Institute for Innovation and Competition have led an effort among patent scholars to map patent ‘flexibilities’ included in the TRIPs Agreement. These flexibilities allow developing countries to adapt their national patent law to their developmental needs. Said legal scholars have argued in favour of regulatory sovereignty and room for manoeuvre under TRIPs but they have seldom stated for what purpose this policy space should be preserved. In this contribution, we draw on the work of Raul Prebisch to explore one possible, productive way of using the flexibility of the TRIPs Agreement. Prebisch was a twentieth century Argentinian structuralist economist and a leading specialist of economic development in Latin America. Over the past 15 years, Prebisch’s work has received renewed attention. Prebisch’s structural analysis deviates from the dominant schools of neoclassical economics, institutional economic analysis in legal scholarship and free trade ideology in international economic law. Nevertheless, Prebisch's writings remain relevant to patent theory. We derive a patent policy from Prebisch’s economic writings and subsequently argue that Prebisch’s patent vision can be implemented under today’s TRIPs Agreement as interpreted by Reto Hilty.