Public Health, Intellectual Property Rights, and Developing Countries’ Access to Medicines

Author(s):  
Kamini Shanmugaiah

The impact of intellectual property rights in particular patent relating to public health has posed numerous challenges faced by developing countries who are members of World Trade Organisation (WTO). This paper examines the impact of TRIPS Agreement (Trade Related Intellectual Property Rights) in relation to developing countries in general with specification made to India. Significant changes brought about by the TRIPS flexibilities in particular usage of compulsory licensing and Bolar provision have to a certain extent benefited the developing countries in the field of public health during national emergency. The TRIPS flexibilities by way of amendment have helped countries that (do not possess manufacturing capacities) to import medicines. Some developing countries even utilised TRIPS flexibilities in an aggressive manner to enforce their right to have access to medicines from other countries for the benefit of their citizens. Further, TRIPs flexibilities have helped developing countries to manufacture generic products to make it affordable to the people. This paper specifically examines the impact of the TRIPS Agreement on Indian generic pharmaceutical industry and the legal challenges faced by Indian pharmaceutical industry after the implementation of product patent regime effective from 1 January 2005. The Patent Amendment Act 2005(India) will be looked into especially on the controversy in respect of Section 3(d) of the Patent Amendment Act 2005(India) on the requirement of patentability. The new Section 92A of the Patent Amendment Act 2005(India) on the grounds to invoke compulsory licensing will be analysed to see whether Indian government has applied restrictive or broad approach, as compulsory licensing is certainly an important legal


Author(s):  
Maciej Barczewski ◽  
Sebastian Sykuna

Over the past few years the WTO Council for Trade-Related Aspects of Intellectual Property Rights recognized the growing concern over an imbalance between intellectual property and public interest. With regard to health technologies in particular, without sufficient use of balancing exceptions and limitations, patents and related monopoly rights primarily serve to protect corporate interests of the pharmaceutical industry. The broadest possible use of compulsory licenses is one of the essential measures that can contribute to increase in responsiveness to public interest considerations in defining the boundaries of the IP-related components that determine access to medicines. Another instrument is the process of interpretation and implementation of the Trade-Related Aspects of Intellectual Property Rights Agreement (TRIPS), which aims not only at clarifying the meaning of the provisions or determining the intentions of the parties to this treaty, but sets sights on reconciling its competing objectives. The need to interpret and implement the TRIPS Agreement in a way that protects public interest is confirmed by the obligation of acting “in a manner conducive to social and economic welfare” under Article 7 of the Agreement. Moreover, Article 8 allows to adopt “measures necessary to protect public health and nutrition, and to promote the public interest in sectors of vital importance to their socio-economic and technological development”. Therefore, in the context of the problem of access to medicines, the important role of human rights as an instrument for the prevention of abuse of intellectual property rights and the restoration of their balance, taking into account the interests of both the beneficiaries of protection and the general public, should be emphasized.


2002 ◽  
Vol 32 (126) ◽  
pp. 103-125
Author(s):  
Michael Frein

The article discusses the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPs) of the World Trade Organisation (WTO) as an instrument for the globalisation of intellectual property rights. It focuses on the provisions of TRIPs Art 27.3 (b), which contains global rules for the patenting of life, and the question of access to medicines for the poor in developing countries. By analysing the underlying economic and political interests of the industrial countries and multinational corporations, which have formed the provisions of the TRIPs- Agreement, it is argued that higher standards in intellectual property rights, especially patents, advantage the rich and disadvantage the poor. Therefore there is an urgent need to change the TRIPs-Agreement in line with the interests and in favour of developing countries. The article shows that there are several suggestions for the current negotiations made not only by NGOs, but also by governments of developing countries.


2021 ◽  
Author(s):  
◽  
Sarah Meads

<p>Restrictive provisions in international trade agreements, particularly trade related intellectual property rights (TRIPS), are impeding access to essential medicines in developing countries, making medicines unaffordable to poor people. The extent to which trade restrictions have adverse effects on health and economic development in Fiji and the Pacific region may depend critically on how Pacific Island Countries cope with the forces of regionalism and the realities of joining the global trading system, where there are pressures to make concessions in TRIPS. Yet awareness is relatively low. A central question to be asked here is what underlying factors shape how Pacific islanders view trade and access to medicines, notably in the area of trade, health, local culture, and human rights and what are the regional and national responses to mitigate potential trade impediments. By combining a public health lens with a multi-sector review of population health trends, intellectual property rights law, trade policymaking, and human rights, this research elaborates multidisciplinary findings that are usually less evident because they are conventionally researched and managed on a sector-by-sector basis. The findings suggest human rights are less significant in this debate, with challenges associated with small island developing states, local cultural preferences and pressures from regionalism, having more of a direct influence. The combined effect of these factors may be creating a unique context that is leading the Pacific region not to deal with these issues as well as some other developing countries might. This paper also discusses the emergence of two new challenges for human rights theory; to promote the collective rights of individual countries in the 'new regionalism', and the relationship with traditional knowledge.</p>


2021 ◽  
Author(s):  
◽  
Sarah Meads

<p>Restrictive provisions in international trade agreements, particularly trade related intellectual property rights (TRIPS), are impeding access to essential medicines in developing countries, making medicines unaffordable to poor people. The extent to which trade restrictions have adverse effects on health and economic development in Fiji and the Pacific region may depend critically on how Pacific Island Countries cope with the forces of regionalism and the realities of joining the global trading system, where there are pressures to make concessions in TRIPS. Yet awareness is relatively low. A central question to be asked here is what underlying factors shape how Pacific islanders view trade and access to medicines, notably in the area of trade, health, local culture, and human rights and what are the regional and national responses to mitigate potential trade impediments. By combining a public health lens with a multi-sector review of population health trends, intellectual property rights law, trade policymaking, and human rights, this research elaborates multidisciplinary findings that are usually less evident because they are conventionally researched and managed on a sector-by-sector basis. The findings suggest human rights are less significant in this debate, with challenges associated with small island developing states, local cultural preferences and pressures from regionalism, having more of a direct influence. The combined effect of these factors may be creating a unique context that is leading the Pacific region not to deal with these issues as well as some other developing countries might. This paper also discusses the emergence of two new challenges for human rights theory; to promote the collective rights of individual countries in the 'new regionalism', and the relationship with traditional knowledge.</p>


2008 ◽  
Vol 10 (2) ◽  
Author(s):  
Ana Celia Castro ◽  
Maria Beatriz Amorim Bohrer

TRIPS as it stands is against the interests of developing countries, and needsreform. In developing their own patent law, developing countries need to recognizethat there is now near consensus among informed observers that patentlaw and practice have, in some cases, overshot, and need to be reformed. Thatis the burden of the recent NAS/NRC report on “A Patent System for the 21stCentury.


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