Re-Visiting the Patents and Access to Medicines Dichotomy: An Evaluation of TRIPS Implementation and Public Health Safeguards in Developing Countries

Abstract:     
Under the Agreement on Trade Related Aspects of the Intellectual Property Rights (TRIPS), developing country Member States had ten years to create enforceable pharmaceutical product patent regimes. This paper reviews how a handful of developing countries, with particular focus on India, implemented safeguards to ensure access to critical ARVs needed to support their government-run health programmes. Focusing primarily on what may be considered the strongest safeguards available under TRIPS – scope of patentability, pre-grant patent opposition, and compulsory licensing – this paper compares the provisions de jure with their implementation and usage de facto. The paper concludes by evaluating how the safeguards adopted by some of these countries discussed could be developed upon to not only improve access to medicines, but also the quality of patents and innovation in the pharmaceutical sector.

Number of Pages in PDF File: 35

Keywords: Patents, HIV/AIDS, Access to Medicines, India, Brazil, Mexico, Philippines, Thailand, TRIPS, Patent Oppositions, Section 3d, Patent Quality, Patentability, Compulsory Licensing

working papers series