Trips Agreement And Public Health

1. The TRIPS agreement provides minimum standards for the protection of patents, trademarks, copyrights and other intellectual property rights. See the text of the agreement in www.wto.org. Paragraph 6, called the Doha award, was clearly the most advanced aspect of the Doha Declaration; it called for a review of one of the main barriers to access to medicines in the TRIPS agreement. Unfortunately, the WTO did not reach an agreement until the end of 2002 (5). Parallel imports allow a developing country to use the common practice of different drug pricing in different countries. For example, if a package of nevirapine, a patented drug, is sold for $250.00 in France and $275.00 in South Africa, a South African company (or the government itself) can import the drug from France and sell it at a lower price without the permission of the South African patent holder. Parallel imports effectively allow countries to buy patented medicines at the lowest overall price. The parallel import right under the TRIPS agreement is based on a fundamental legal principle called “exhaustion” of intellectual property rights, which sets the date on which a patent holder no longer has exclusive rights in the resale of his or her product (5). Article 6 of the agreement stipulates that Member States can independently decide when the exclusive rights of patent holders with respect to resale are denounced, but issues of exhaustion cannot form the basis of a WTO dispute for settlement. Article 6 of the ON TRIPS agreement allows Member States to import in parallel.

Campaign for Access to Essential Medicines: MSF to WTO: Rethinking Access to Life-Saving Medicines. Geneva, MSF, 25 October 2005, [www.accessmed-msf.org/prod/publications.asp?scntid=251020051332373&contenttype=PARA] In accordance with Article 33 of the TRIPS agreement, “the duration of protection does not end until the expiry of a period of twenty years” from the date of filing. This is the period during which the product can be marketed with exclusive patent rights. However, the duration of protection can be shortened by two administrative procedures: the patent review procedure and the marketing authorisation procedure. In order to avoid an “unwarranted reduction” in the period of protection, the TRIPS agreement provides that a patent should be issued within a “reasonable time” period (Article 62, paragraph 2).

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