Safeguarding developing countries' rights to affordable medicines for HIV/AIDS: how effective are international trade rules?

Abstract

By 2006 all World Trade Organization (WTO) member states will have to put into place a minimum standard of the Trade-Related Aspects of Intellectual Property Rights (TRIPS) agreement which includes a patent period of 20 years. While such a requirement would give market exclusivity to the patent holders and eliminate the possibility of purchasing cheaper drugs it could also have an impact on the ability of nascent generics industries in developing countries to acquire new technologies and compete in a globalized marketplace. However the TRIPS agreement recognizes that a balance must be struck between intellectual property rights and the accessibility of drugs. Hence safeguards are allowed under the agreement enabling WTO members to bypass some of the patent rules where strict adherence would bar access to medicines. It is up to the discretion of national governments whether these safeguards are written into national law. Nevertheless several obstacles face any developing country wishing to write these safeguards into law and use them in practice.