An ever-present question is how to properly balance patent rights with public health. However, this question is arguably becoming more difficult in an era of proliferating international agreements and norms. This chapter describes the genesis and requirements of the basic international framework for patents pursuant to the Trade Related Intellectual Property Agreement (‘TRIPS’). After introducing basic TRIPS requirements, controversies are discussed including India’s controversial law barring certain inventions from patentability, as well as compulsory license controversies, including political pressure and retaliation. In addition, newer challenges are discussed, such as TRIPS plus requirements concerning patent and regulatory laws as well as investor-state disputes under international agreements. Lastly, the chapter provides some thoughts on how to balance patent rights with public health.
Cynthia M. Ho
This chapter evaluates the extent to which TRIPS flexibilities are compromised by investor-state disputes (ISDS) regarding intellectual property (IP) norms that are covered by TRIPS. The chapter begins with a brief discussion of IP norms under TRIPS, as well as TRIPS flexibilities and explains how ISDS poses a threat to TRIPS. The chapter then analyzes the known investment disputes challenging IP norms to assess the significance of the ISDS threat to TRIPS flexibilities, including challenges by Philip Morris to tobacco labeling that restricts trademarks, Eli Lilly’s challenge to Canadian patent laws and several more recent disputes.