Intellectual Property in the WTO Volume I
- Research Handbooks on the WTO series
Edited by Carlos M. Correa
Chapter 19: Disease-based Limitations on Compulsory Licenses Under Articles 31 and 31bis
19 Disease-based limitations on compulsory licenses under Articles 31 and 31bis Kevin Outterson* 1. Disease-based limitations on compulsory licenses in TRIPS Article 31 Article 31 of the Agreement on Trade-related Aspects of Intellectual Property Rights (TRIPS) permits a World Trade Organization (WTO) Member country to issue a compulsory license of a patent under certain conditions.1 Compulsory licenses are not limited to any category of diseases. The text of Article 31 never mentions any specific diseases, a deliberate decision by the negotiating group to avoid any disease-based limitation.2 This provision has been misunderstood – perhaps deliberately so – in the pages of the Wall Street Journal and the Financial Times to imply that Article 31 only applies to national public health emergencies like HIV/AIDS or only to the least-developed countries. When Thailand (a middle-income country) attempted to use TRIPS flexibilities guaranteed and encouraged by the Doha Declaration on drugs for cancer and heart disease, a backlash ensued from the conservative media, pharmaceutical manufacturers, patent blogs, and the governments of the United States and the European Union.3 A Wall Street Journal editorial attacked the * This chapter is a modified and expanded version of Should Access to Medicines And TRIPS Flexibilities Be Limited To Specific Diseases? 34 AM. J. L. & MED. 279 (2008), used by permission. An earlier version of this project was submitted to the WHO IGWG in 2007: A Request for Clarification Concerning the Proper Scope of the IGWG’s Work to Improve Access to Patented Medicines, Submission to the WHO IGWG (September 30,...
You are not authenticated to view the full text of this chapter or article.
Elgaronline requires a subscription or purchase to access the full text of books or journals. Please login through your library system or with your personal username and password on the homepage.
Non-subscribers can freely search the site, view abstracts/ extracts and download selected front matter and introductory chapters for personal use.
Your library may not have purchased all subject areas. If you are authenticated and think you should have access to this title, please contact your librarian.