January 30, 2006

TRIPs and Public Health

Posted in Uncategorized at 4:50 pm by thelawthoughts

I forgot about this one too, in which the IPKat discusses the amendment of the TRIPs Agreement.

Essentially, drug patents are stricly protected by the TRIPs Agreement. Article 31 provides that, where a Member’s laws allow that Member to produce, say, a drug without the consent of the patent holder, a long list of conditions must be fulfilled. This process is called compulsory licencing, and works so that the patent holder cannot prevent the Member producing a drug in times of public health emergencies.

A crucial condition is 31(f), whereby a Member can only produce compulsorily licensed drugs for its domestic market. This sounds reasonable enough, in that you can’t produce drugs protected by patent then export them to any who will buy them. However, when you think about it, this means that a country in which people are too poor to buy essential medicines must have a functioning generic pharmaceutical industry. Of course, this is often not the case.

As part of the Doha round of trade talks, Members made a unanimous Declaration (subsequently called the Doha Declaration) that this provision would not apply to Least Developed Countries. Therefore, a country which is underdeveloped but can make some drugs could then export the stuff to other LDCs without penalty. This made it much easier in theory for LDCs to get together and produce drugs which prevent medical conditions that effectively perpetuate their status as LDCs.

However, because this was only a Declaration, it was not really taken all that seriously. This amendment to the legal text, however, is much more significant. It takes away the ambiguity that surrounded the compulsory licensing provisions and would, for example, force a Dispute Settlement Panel to interpret the TRIPs Agreement in favour of the LDC producing the medicine for its group of underdeveloped friends.

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