Document Type

Article

Publication Date

2009

Keywords

compulsory licensing, drug patents, TRIPS, innovation policy, pharmaceutical licensing

Subject Category

Food and Drug Law | Intellectual Property | International Law | Law | Pharmacoeconomics and Pharmaceutical Economics

Abstract

In this Comment, the author traces the relevant legislative history pertaining to compulsory licensing of patented pharmaceuticals from the TRIPS Agreement of 1994 to the 2003 waiver to, and later proposed amendment of, article 31, which enables poor countries to obtain needed medicines from other countries that possess manufacturing capacity. The Comment then evaluates recent, controversial uses of the relevant legislative machinery as viewed from different critical perspectives. The Comment shows how developing countries seeking access to esential medicines can collaborate in ways that would avoid undermining incentives to innovation and other social costs attributed to compulsory licensing. It ends by defending the legality of recent measures taken to promote public health in developing countries, and by reminding developed countries that unilateral retaliation against such measures is demonstrably illegal under WTO foundational law and jurisprudence.