Patents and Public Health in the WTO, FTAs and Beyond: Tension and Conflict in International Law

(2009) 43(3) Journal of World Trade 571-601

31 Pages Posted: 5 Jun 2015

See all articles by Andrew D. Mitchell

Andrew D. Mitchell

University of Melbourne - Law School

Tania Voon

University of Melbourne - Law School

Date Written: June 5, 2015

Abstract

By mandating patent protection for pharmaceutical products, the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) of the World Trade Organization (WTO) creates difficulties for developing countries seeking to import medicines to deal with serious public health concerns. In 2001, WTO Members began working towards a solution to this problem. Their work led to a temporary waiver of certain TRIPS obligations and a proposal for a formal amendment of the TRIPS Agreement. However, the waiver remains underutilized and the amendment still lacks the necessary support of WTO Members for it to come into effect, suggesting that Members need to re-evaluate their commitment to affordable medicines while testing the workability of the waiver before making it permanent. Moreover, the potential of bilateral approaches to the problem of access to medicines for developing countries in the context of international trade is not being realized. On the contrary, preferential trade agreements concluded with the United States (US), in particular, are extending patent protection and diminishing flexibilities available under the TRIPS Agreement to address public health concerns. A pattern of contradictions exists between the WTO rhetoric on the one hand and Members' domestic frameworks, bilateral agreements, and unilateral actions on the other. When it comes to attaining a coherent approach under international law towards reconciling patents and public health, the outlook is bleak.

Keywords: Agreement on Trade-Related Aspects of Intellectual Property Rights, pharmaceuticals, public health

Suggested Citation

Mitchell, Andrew D. and Voon, Tania, Patents and Public Health in the WTO, FTAs and Beyond: Tension and Conflict in International Law (June 5, 2015). (2009) 43(3) Journal of World Trade 571-601 . Available at SSRN: https://ssrn.com/abstract=2614891

Andrew D. Mitchell (Contact Author)

University of Melbourne - Law School ( email )

University Square
185 Pelham Street, Carlton
Victoria, Victoria 3010
Australia
+61383441098 (Phone)
+61393472392 (Fax)

HOME PAGE: http://www.law.unimelb.edu.au/staff/Andrew%20Mitchell

Tania Voon

University of Melbourne - Law School ( email )

University Square
185 Pelham Street, Carlton
Victoria, Victoria 3010
Australia

Register to save articles to
your library

Register

Paper statistics

Downloads
113
rank
238,386
Abstract Views
437
PlumX Metrics