Intellectual Property Rights In Bilateral Investment Treaties and Access to Medicines: the Case of Latin America (original) (raw)
Related papers
therefore, it may make it difficult for developing countries to gain access to medicines, especially those countries that are the least developed. This study aims to determine whether implementation of the TRIPS Agreement in Latin American and Caribbean countries has generated patent legislation that is sensitive to public health needs. Methods Legislation in 11 Latin American and Caribbean countries was analysed. The variables considered in the analysis were: the term of patents issued, patentable subject matter, transition periods (that is, time until legislation was enacted), reversal of the burden of proof of patent infringement, exhaustion of rights, compulsory licensing and the early working exception (which allows a country to complete all procedures necessary to register a generic product before the original patent expires). Findings By 2000, all of the countries studied had reformed their legislation to conform to the agreement. Brazil and Argentina used the transition period until 2005 to grant patents in the pharmaceutical industry. All countries, except Panama, made use of the safeguards and flexibilities available through the agreement by including mechanisms for compulsory licensing in their legislation. Argentina; Bolivia, Colombia, Ecuador, Peru and Venezuela (countries that represented the Andean community); the Dominican Republic; and Panama included mechanisms to allow parallel importation. Mexico did not. Brazil only permits parallel importation after a compulsory licence has been issued. The early working exception is included in legislation in Brazil and the Dominican Republic. Conclusion The countries in this study did not incorporate all of the mechanisms allowed for by the Agreement and are not adequately using the provisions that enable World Trade Organization (WTO) members to obtain better health for the public, particularly in regard to gaining access to medicines. This situation may deteriorate in future if other agreements establish more restrictive rules for intellectual property rights.
TRIPS and the international public health controversies: issues and challenges
TRIPS and the international public health controversies: issues and challenges
The aim of this article is to contribute to an evaluation of the meaning and practical effects of the Trade-Related Intellectual Property Rights (TRIPS) agreement on public health issues. Section 2 presents the situation that prevailed for intellectual property (IP) protection in the pharmaceutical industry before the signing of the TRIPS, in both developed countries and developing countries (DCs). Section 3 is devoted to a presentation of the key changes that have taken place at the legal level with the signing of the TRIPS, providing an opportunity to highlight the way in which TRIPS has disrupted the existing situation by generating a series of serious tensions, notably in the relations between North and South countries. Section 4 is devoted to the new challenges posed by the post-2005 scenario, 2005 being the end of the transition period granted DCs to comply with the TRIPS requirements. Section 5, focusing on the Brazilian anti-AIDS program, tries to illustrate how the post-2005 scene has narrowed the margins for efficient action against the AIDS pandemics and put the Brazilian national public health program under strain.
TRIPS-Plus Free Trade Agreements and Access to Medicines
Liverpool Law Review, 2007
The battle over access to essential medicines revolves around the rights to issue compulsory licenses and to manufacture and export generic versions of brand name drugs to expand access. Global brand name pharmaceutical firms have sought to ration access to medicines and have used their economic and political clout to shape United States trade policy. They have succeeded in getting extremely restrictive TRIPS-Plus, and even US-Plus, intellectual property provisions into regional and bilateral free trade agreements. Asymmetrical power relations continue to shape intellectual property policy, reducing the amount of leeway that poorer and/ or weaker states have in devising regulatory approaches that are most suitable for their individual needs and stages of development. While the overall trend is disturbing, some recent activities in the World Health Organization and evidence of greater unity behind health-based TRIPs flexibilities provide some grounds for cautious optimism.
Information & Communications Technology Law, 2015
The entry of the TRIPS Agreement has seen the developing countries and the least developed countries (LDCs) suffer from the excessive burden of obligations imposed under the Agreement to embrace and implement a higher standard of intellectual property protection. One of the areas where the impact of the measures are most felt is on accessibility to affordable medicines for frontline treatment of diseases in developing countries and LDCs, where the majority of the HIV/AIDS sufferers come from. This inevitable plight, although well known, and posited by the developing countries and LDCs during the Uruguay round of negotiations, was overlooked. This also necessitated the Doha Deceleration, which does not seem to have addressed the problem. The developed countries have also successfully utilised the TRIPS Agreement's intellectual property rights protection criteria as a benchmark, to develop a much higher intellectual property rights protection agenda through the introduction of TRIPS-plus provisions in bilateral and other plurilateral agreements entered into with developing countries. The winners in the game are the patent holding pharmaceutical corporations, software corporations, media corporations, and the developed countries where they are incorporated. The one at the receiving end are the developing countries and the LDCs who were promised technology transfer to build a modern economy by the developed countries, but are faced with multiple problems of non-availability of affordable medicines for health care, besides others. This article seeks to study the justification for an extended intellectual property rights protection under the TRIPS Agreement through an analysis of the philosophical underpinnings of the intellectual property rights and the patent regime. It will be argued that the TRIPS Agreement is a major obstacle that the developing countries and the LDCs have been made to face as Members of the WTO, with no end in sight for their miseries, and that the only possible solution is a review, or amendment of the TRIPS Agreement.
Journal of Intellectual Property Rights (JIPR) : [776] ISSN: 0975-1076 (Online); 0971-7544 (Print) JIPR Vol.22(6) [November 2017] Page(s): 295-302, 2017
Though the UN has envisaged that accessibility to essential medicines is a basic human right, a large number of people in developing countries are denied access to essential medicines. MNCs having the branded medicines have a tendency to choke the supply chain of cheaper generic medicines using the weapon of intellectual property rights. The TRIPS Agreement has set the minimum standard of protection of Intellectual Property but it has provisions of flexibilities such as compulsory licenses, parallel imports limitations to patent rights, etc., which can be used by member states to provide access to these essential medicines to their people. However, countries like US are using provisions which are over and above the flexibilities incorporated in TRIPS to deny access to essential medicines to people in developing countries. The accessibility of essential medicines to the population in developing countries as affected by these FTAs, ACTA, TPP and TTIP agreements have been examined in this paper and a case has been made out for the unity of the developing and least developed countries to deter US from choking the supply lines of the essential medicines to poor and needy.
Yuridika, 2022
The rapid spread of the SARS-CoV-2 virus, which is responsible for the COVID-19 pandemic, has spawned an intense debate on the necessity of a waiver of some provisions of the World Trade Organization's Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) to increase access to medicines and other medical technologies essential for combating the disease. Through a legal research method, this article explores the potential of the TRIPS waiver as a mechanism for reconciling the conflicting norms of public health with intellectual property rights protection by interpreting the TRIPS provisions backed by relevant legal theories. It argues that while the TRIPS waiver can be an effective legal instrument that accommodates public health concerns of increasing access to medicines and medical technologies, it has, in its current form and text, many flaws that militate against its effectiveness. These flaws are evident in how the TRIPS waiver is couched, notwithstanding that the waiver presents multiple benefits, including furthering re-humanisation, distributive justice and decolonisation goals. The article offers recommendations on how the TRIPS waiver adopted during the WTO's recently concluded 12th Ministerial Conference could be strengthened to eliminate some of its defects in expanding access to COVID-19 vaccines and other therapeutics products. The research methodology used in this article is the qualitative desktop doctrinal research method.
Journal of International Economic Law - J INT ECON LAW, 2007
The entry into force of the World Trade Organization (WTO) TRIPS Agreement in 1995 transformed the international intellectual property system. The harmonization of basic intellectual property standards has operated to protect investment in innovation, limiting risks from unjustified ‘free riding’. Yet these same harmonized IP standards sharply curtailed the traditional capacity of suppliers of public goods, such as health care and nutrition, to address priority needs of less affluent members of society, particularly in (but not limited to) developing countries. In the Doha Declaration, the Waiver Decision of 30 August 2003 and the Article 31bis Protocol of Amendment, stakeholders concerned with re-opening policy space for the supply of newer pharmaceutical products pushed back against restrictive elements of the TRIPS Agreement.Governments around the world are in the process of deciding whether to ratify and accept the Article 31bis Amendment. Based on their Study for the Internatio...