Global Diseases, Global Patents and Differential Treatment in WTO Law

Abstract

As of January 1, 2005, all developing country members of the WTO are required to implement the WTO Agreement on Trade Related Intellectual Property Rights (TRIPS). We analyze the issue of access to patented medicine to treat global and neglected diseases in developing countries in the context of WTO law. We present legal and economic arguments that support balancing the rights of producers and users on a market-by-market basis and argue against taking a uniform approach globally. We develop an analytical framework for assessing special and differential treatment of developing countries in WTO law and apply this framework to TRIPS. We then propose criteria for assessing the correct balance between the rights of producers and users on a market-by-market basis in order to operationalize special and differential treatment with respect to pharmaceutical patents.

Keywords: WTO, TRIPS, global diseases, WIPO, developing countries, HIV, AIDS, index construction

JEL Classification: K2, K33, K42