TRIPS and Enforcement: Balance and New Challenges

TRIPS and Enforcement: Balance and New Challenges
Xavier Seuba, University of Strasbourg

The enforcement chapter in the TRIPS Agreement finds no precedent in previous IP agreements. Unlike the chapters on substantive law, most provisions are worded as recommendations rather than obligations. No dispute settlement has dealt with enforcement issues. Yet even the soft law character of the enforcement provisions may have led to changes in domestic law: the EU Directives on Enforcement and Border Enforcement, domestic attempts to improve evidence collection, the protection of trade secrets in court proceedings, increased damage awards and the multitude of jurisdictions that set up specialised courts or court divisions dedicated to IP are
evidence thereof. But has increased enforcement also, as Hugh Laddie once put it, become an instrument of oppression? Has it led to an over-zealous spill over in the private sphere, to extortion rackets and to patent trolls?