Analysis of TRIPS Agreement and the justification of international IP rights protection in the WTO's multilateral trading system, with particular reference to pharmaceutical patents

Sundaram, Jae (2015) Analysis of TRIPS Agreement and the justification of international IP rights protection in the WTO's multilateral trading system, with particular reference to pharmaceutical patents. Information and Communications Technology Law, 24 (2). pp. 121-163. ISSN 1360-0834

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Abstract

The entry of the Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement has seen the developing countries and the least developed countries (LDCs) suffer from the excessive burden of obligations imposed under the Agreement to embrace and implement a higher standard of intellectual property (IP) protection. One of the areas where the impact of the measures is most felt is on accessibility to affordable medicines for frontline treatment of diseases in developing countries and LDCs, where the majority of the HIV/AIDS sufferers come from. This inevitable plight, although well known, and posited by the developing countries and LDCs during the Uruguay round of negotiations, was overlooked. This also necessitated the Doha Deceleration, which does not seem to have addressed the problem. The developed countries have also successfully utilised the TRIPS Agreement's IP rights protection criteria as a benchmark, to develop a much higher IP rights protection agenda through the introduction of TRIPS-plus provisions in bilateral and other multilateral agreements entered into with developing countries. The winners in the game are the patent-holding pharmaceutical corporations, software corporations, media corporations, and the developed countries where they are incorporated. The ones at the receiving end are the developing countries and the LDCs who were promised technology transfer to build a modern economy by the developed countries, but are faced with multiple problems of non-availability of affordable medicines for health care, besides others. This article seeks to study the justification for an extended IP rights protection under the TRIPS Agreement through an analysis of the philosophical underpinnings of the IP rights and the patent regime. It will be argued that the TRIPS Agreement is a major obstacle that the developing countries and the LDCs have been made to face as Members of the WTO (World Trade Organisation), with no end in sight for their miseries, and that the only possible solution is a review or an amendment of the TRIPS Agreement.

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