The TRIPS Waiver as a Recognition of Public Health Concerns in the WTO
in Thomas Pogge, Mathew Rimmer and Kim Rubenstein, Incentives for Global Public Health: Patent Law and Access to Essential Medicines (Cambridge University Press, 2010) 56-76.
14 Pages Posted: 27 Sep 2015
Date Written: 2010
Patent protection for pharmaceutical products as mandated in the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) of the World Trade Organization (WTO) represents a potentially signicant obstacle to public health measures, particularly for developing countries seeking to import medicines to deal with serious public health concerns, such as the HIV/AIDS crisis. Since 2001, WTO members have acknowledged this tension while working slowly towards a formal amendment of WTO rules that would facilitate compulsory licensing of pharmaceuticals for the benefit of least-developed country (LDC) members, as well as other members lacking sufficient manufacturing capacity to use the existing flexibilities in the TRIPS Agreement in respect of public health. As the first shipment of drugs from Canada to Rwanda under the new arrangements has recently taken place (in September 2008), we take opportunity to reflect on the steps taken to date within the WTO to resolve the patent/public health tension.
In section 2, we explain why WTO members needed to reform the TRIPS Agreement in order to improve access to medicines for public health reasons, before turning in section 3 to the temporary solution reached in the form of a waiver of certain TRIPS obligations. In section 4 we then consider the more permanent solution of a formal amendment that is envisaged for the future. This chapter then turns in section 5 to consider how the waiver remains underutilized, suggesting that members need to re-evaluate their commitment to affordable medicines and test the workability of the waiver before making it permanent. Finally, in section 6 we examine the additional limited exceptions to patent protection granted in the waiver for bilateral free trade agreements and regional patent systems. However, we conclude that the potential of this use of the waiver is also not being realized.
Keywords: TRIPS, HIV/AIDS, World Trade Organization, compulsory licensing, pharmaceuticals
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