Global Diseases, Global Patents and Developing Countries in WTO Law

Special and differential treatment of members is a controversial subject at the World Trade Organization (WTO) and nowhere is the debate more pronounced than in the context of life-saving medicines and patent protection. However, concerns have been raised in WTO negotiations regarding how to ensure that special and differential treatment targets developing countries’ trade, financial and development needs, without prejudicing the rights of other WTO members. In 2003, the WTO adopted a decision to amend the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) in order to enhance access to essential medicines in developing countries. In 2004, the World Intellectual Property Organization (WIPO) adopted an agenda to further the development of countries by considering different intellectual property regimes appropriate to the circumstances of a particular country or region. The WTO and the WIPO are the two major entities working to develop international patent law, and one of the objectives of TRIPS is to establish a mutually supportive relationship between the two. The application of TRIPS to developing countries has become even more important with the full entry into force of their patent obligations on 1 January 2005.

In this chapter, we provide an overview of key TRIPS obligations and exceptions relating to patents, as amended to date by the Doha Round negotiations. Part III analyzes how WTO provisions on special and differential treatment of developing countries should be applied to TRIPS law and policy, taking into account the 2004 Appellate Body ruling in European Communities – Tariff Preferences for Developing Countries. Part IV analyzes the consistency of global patent rights with the economic and developmental objectives of the WTO and shows how strong patent rights in developing countries contradict these objectives. Part V then analyzes whether TRIPS is amenable to an interpretation that would achieve a more appropriate balance between the rights of producers and users of patented pharmaceuticals and shows that an amendment to TRIPS to facilitate the use of compulsory licensing in developing and least-developed countries is a second-best solution. Rather, the best solution is to grant waivers for developing countries and extensions of the transition period for least-developed countries. This chapter proposes a set of measurable criteria to implement special and differential treatment of countries with respect to pharmaceutical patents on a market-by-market basis using these two mechanisms. Equal access to life-saving medicines requires equal access to legal rights that affect that access.