Brazil's implementation of TRIPS flexibilities: ambitious missions, early implementation, and the plans for reform

Abstract

The flexibilities introduced in the Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement were aimed at providing the developing countries with the option to adopt suitable measures to address access to patent-protected pharmaceutical products. The flexibilities include the grant of compulsory licences, exceptions to the exclusive right conferred by patent, allowing for parallel imports, and defining the criteria of patentability to achieve the goal of public health. While these flexibilities are available to all developing countries, only a few have implemented the flexibilities into their patent legislation. This paper examines the TRIPS compliant patent laws introduced in Brazil in the post-TRIPS era. It will be argued that the TRIPS Agreement was implemented too soon in Brazil, and the TRIPS flexibilities, although available had not been fully utilised due to pressure from transnational pharmaceutical corporations backed by developed countries, fear of exclusion from major trading blocs, and also due to a gap in the knowledge economy. It will also be argued that the World Trade Organization did not create a level playing field in the TRIPS negotiation in the lead up to the entry into force of the Agreement in 1995, which effectively handed over the advantage to the developed countries, thereby creating a two-tier system in the intellectual property rights arena and making it impossible for developing countries and least-developed countries to achieve the objective of access to affordable medicines.