Intellectual Property and Access to Essential Medicines
Elgar Intellectual Property and Global Development series
Edited by Obijiofor Aginam, John Harrington and Peter K. Yu
Chapter 6: Re-visiting the patents and access to medicines dichotomy: An evaluation of TRIPs implementation and public health safeguards in developing countries
One of the key concerns surrounding the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs) was its potential impact on access to medicines (Correa, 2000, p. 35). Many developing and least-developed countries were required, for the first time, to implement a minimum level of patent protection for pharmaceutical chemical products. India, with the second highest HIV population globally and recognized as the pipeline of affordable generic drugs for the developing world, was confronted with numerous implementation challenges (Chaudhuri, 2005). Brazil and Thailand, which had invested heavily in their universal antiretroviral (ARV) access programmes for HIV/AIDS patients, faced rising costs of drug prices as patents came into play (Ford, Wilson, Chaves, Lotrowska and Kijtiwatchakul, 2007, pp. S21–9). As a result, a vast amount of literature and public health commentary suggested how developing and least-developed countries could use the flexibilities within TRIPs to ensure patents not make medicines unaffordable (Musungu and Oh, 2005). However, pressure from developed countries, combined with a lack of political will or understanding of the issues in developing countries, has resulted in difficulties for many countries seeking to implement such flexibilities. Yet, despite these difficulties, there have been successes in developing countries implementing safeguards within their patent laws, which have subsequently been used to ensure continued access to affordable medicines. The purpose of this chapter is to provide a comparative review and evaluation of the manner in which a selection of developing countries chose to implement TRIPs into their patent laws and how these policies straddle the patents and access to medicines dichotomy.
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