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 10: Building IPC4D to promote access to essential medicines
On 6 December 2005, shortly before the World Trade Organization (WTO) Ministerial Conference in Hong Kong, WTO member states agreed to accept a protocol of amendment to the Agreement on Trade- Related Aspects of Intellectual Property Rights (TRIPs Agreement). This proposed amendment sought to provide a permanent solution to implement paragraph 6 of the Doha Declaration on the TRIPS Agreement and Public Health (Doha Declaration). If ratified by two-thirds of the WTO membership by December 2013, the proposed Article 31bis of the TRIPs Agreement will allow countries with insufficient or no manufacturing capacity to import generic versions of on-patent pharmaceuticals. To facilitate the supply of essential medicines to countries with insufficient or no manufacturing capacity, the proposed amendment creates a special arrangement not only for the affected countries, but also for those belonging to a regional trade agreement. Such an arrangement allows less developed countries – including both developing and least developed countries – to aggregate their markets to generate the purchasing power needed to make the development of an indigenous pharmaceutical industry attractive (Yu, 2007b, p. 848). The provision also paves the way for the development of regional supply centres, procurement systems, and patent pools and institutions, while facilitating technical cooperation within the region (Abbott and Reichman, 2003, pp. 973–7; Musungu, Villanueva and Blasetti, 2004, pp. xv–xvi). Unfortunately, because Article 31bis specifically requires that least developed countries make up at least half of the membership of any beneficiary regional trade agreement, the provision would benefit only a limited number of less developed countries,
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