The Evolution of US and EU Approaches to Intellectual Property Provisions Related to Public Health in Free Trade Agreements: Are They Responding to Public Health Concerns?

Abstract

The tension between patent law and public health concerns such as access to medicine has long been an issue of much debate. The requirement of patent protection for pharmaceutical products and various other relevant provisions under the TRIPS Agreement signifies this tension as they have created considerable difficulties for developing countries acquiring the medicines needed to address their public health concerns, despite the flexibilities that had been built into the Agreement. Hence, the Doha Declaration on the TRIPS Agreement and Public Health has been adopted in 2001 to address this issue, hoping to provide relief to this tension between public health policies and intellectual property rights. Nevertheless, this tension seems to have been further heightened with the proliferation of Free Trade Agreements (FTAs), through which developed countries such as the US and the EU have introduced TRIPS-plus obligations that go beyond the minimum standards set by TRIPS, further exacerbating the tension. Over the years, these TRIPS-plus FTAS have been much criticized for their possible conflict with TRIPS norms and their potential negative impact on access to medicine for developing countries. This paper, after providing a brief overview of relevant TRIPS provisions related to public health as well as the phenomenon of FTAs within the WTO regime, will attempt to sketch out the evolution of the approaches the US and EU have taken toward intellectual property provisions related to public health in the FTAs they have signed over the years and examine whether the evolution of these approaches are perhaps a response or an attempt to address the criticisms that have been voiced against these TRIPS-plus provisions. Based on academic quality and relevance of topic, this paper has been selected for inclusion in the 2009/10 Munich Intellectual Property Law Center (MIPLC) Master Thesis Series.