Stretching the Limits: Measures Available Under Article 8(2) TRIPS for Pakistan

Abstract

The TRIPS Agreement is by far the most ambitious multilateral agreement on intellectual property. The features that distinguish it most from other agreements are the provisions on enforcement and dispute settlement, the first of their kind in any international IP instrument. In the presence of such overarching obligations, developing and least-developed WTO Members may find it difficult to participate in international trade without conferring considerable protection to intellectual property right holders, even where such protection may not be congruent to their developmental, social and economic objectives. However, the incorporation of flexibilities in TRIPS may provide such considerable room for discretion when implementing TRIPS provisions in their domestic legal systems.This paper discusses the flexibilities in Article 8(2) TRIPS related to measures that WTO Members may take to prevent or address abuse of patents. This paper attempts to determine the scope of the flexibility through competition law compulsory licenses, patent misuse defense and grant of injunctive relief after the U. S. Supreme Court’s eBay decision.On the basis of the foregoing, the paper assesses whether the statutory law as well as the judicial practice in Pakistan has incorporated the flexibility in Article 8(2) to the fullest extent possible. The paper concludes that the Pakistani law and practice may be improved to incorporate the full flexibility in Article 8(2) as well as to comply with other provisions of TRIPS such as Article 31.