Chapter 2: Two decades after Doha: Compulsory licence and the Waiver Proposal under the COVID-19 pandemic
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The Agreement on Trade-Related Aspects of Intellectual Property Rights (‘TRIPS’) is the major international agreement that aligns countries’ IP laws to provide a minimum standard of protection. Most notably, Article 27(1) of TRIPS requires member states to provide patent protection for all technologies, including those in the pharmaceutical field, a decision that fundamentally alters the patent regime of many countries, particularly that of the least developed countries (‘LDCs’) and low- and middle-income countries (‘LMICs’) that favour a less rigorous regime. The divergence, however, resurfaces as the world endeavours to find a solution to end the COVID-19 pandemic. As the world is recovering, it is critical that we take learnings and figure out ways to improve our response in the future. This chapter explores how the provisions concerning the protection of pharmaceutical products and technology in the TRIPS Agreement have been interpreted and applied since the Doha Declaration and whether such an application reached a balance between maintaining sufficient access to essential pharmaceutical products for public health and the protection for the interest of pharmaceutical companies. It further evaluates the TRIPS flexibilities, particularly the compulsory licence provision and the Waiver Proposal. It concludes that the imbalance and inequitable distribution of COVID-related pharmaceutical products must be brought up urgently, and reform is needed to prepare for future situations.

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