Patents Law and Trips: Compulsory Licensing of Patents, and Pharmaceuticals

Abstract

Harmonization of international intellectual property laws has been the object of considerable recent effort under both public international law and international trade law. The GATT Uruguay Round Agreement on Trade-Related Aspects of Intellectual Property (TRIPS) resulted in significant steps toward harmonization. However, most of the harmonization efforts implemented to date have focused on procedural matters, such as international patent application procedures, and the duration of patents. The World Intellectual Property Organization (WIPO) conducted negotiations toward substantive harmonization under the auspices of the United Nations. However, WIPO negotiations, whether viewed as favorable to developing or developed nations, were routinely foiled. Conflicting policy concerns resulted in polarized approaches to IPR regulation where in developed nations sought protection of their economic interests and developing nations sought protection of their sovereign rights. Consequently, under the international public law regime, negotiations for IPR as an isolated issue failed because neither developed nor developing nations compromised. In 1994, on conclusion of the GATT Uruguay Round, regulation of international IPR shifted from the public law regime to the trade law regime. The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) incorporated significant regulation of international IPR as a requirement for parties to GATT, and was a major first step toward substantive harmonization of international IPR.