Justice
The justice analysis (an element within the three-tier analysis that inspired the TRIPS PLUS ULTRA proposal; the other two elements are effectiveness and validity).
The income per capita of many developed countries exceeds that of developing world countries many times over. Yet both have to live with patents and the associated higher prices for 20 years, which is precisely what the TRIPS PLUS ULTRA proposal seeks to change. Developing countries could benefit from shorter periods of paying monopolistic prices for technology than they currently do (20 years). That is convenient for them, no doubt. Cheaper technology is better for their populations. What about the populations of the developed world? Should they pay more? The rationale behind this proposal is that, yes, they should pay more because they have more. That is the first and most important argument for this proposal. If we take this into account and correct the system to reflect this disparity, more cohesion around the system could follow (for further explanation of this click here, here and here). The TRIPS PLUS ULTRA proposal entails sharing globally the burden that spurring innovation through patents generates. This is the ultimate flexibility which, because it is truly comprehensive, could allow for greater harmonization (developing countries advocate for flexibility while developed countries push for harmonization).
If a regulation is just or not is a subjective issue. Still, it seems an easy deontological argument to say that the patent length should take into account the wealth of each country, especially if it makes the system better overall taking into account the point of view of the developed world as well. To see how this is possible, go to “A global solution for the protection of inventions.”
This proposal, which is clearly convenient for the developing world, would be convenient for the developed countries in a big way too. It would also have the potential to eliminate the free rider problem (those who benefit from innovation without paying their fair share within the system), which in itself would make the international system fairer for those countries that do comply with the regulation. It would be convenient for producers and consumers, overall. Both sides of the aisle would find the proposal convenient, taking into account the status quo (click here and here). The implementation of TRIPS PLUS ULTRA could break the current deadlock and allow for more agreements. The answer may be as simple as introducing flexibility with regard to the period or term of protection for patents!