Patent Breaking or Balancing? Separating Strands of Fact from Fiction Under TRIPS

Abstract

This paper focuses on Thailand's recent issuance of half a dozen compulsory licenses as a case study to examine the scope of compulsory licensing under TRIPS. This article aims to provide a correct interpretation of compulsory licensing under TRIPS article 31, while simultaneously noting and debunking prevailing interpretations. There is presently great confusion and lack of scholarship regarding the use of compulsory licenses by middle-income countries, as well as the appropriate use of licenses for chronic diseases beyond HIV. This article accordingly fills this gap and also concludes by suggesting additional issues in need of further inquiry, such as a competing perspectives on patents, that may currently contribute to continued resistance to appropriate interpretations of TRIPS.

Keywords: patent, TRIPS, pharmaceuticals, Thailand, compulsory license, middle-income, developing country

JEL Classification: O34, O31, K33, H51, I18, F13, L52, L98