Twenty years of TRIPS agreement and access to medicine: a development perspective

Abstract

The Agreement on Trade-Related Aspects of Intellectual Property Rights (the TRIPS) changed the landscape of international Intellectual Property (IP) regime by setting a common minimum standard for the protection and enforcement of IP. In the context of 20 years of the entry into force of the TRIPS Agreement and completion of 11 years of implementation of product patent protection in many developing countries, this paper examines the challenges faced by developing countries with regard to patent and access to medicines. The paper argues that the Agreement is a classic case of corporate capture of international law making and it spearheaded a new chapter of struggle for access to medicines. It provides a brief survey of experiences of developing countries with regard to access to patented medicines as well as research and development (R&D), foreign direct investment (FDI) and technology transfer in the pharmaceutical sector during the post TRIPS period. It analyses major challenges faced by developing countries in the actual use of TRIPS flexibilities to address access to medicines and thereby meeting the developmental and public health needs. The paper focuses on the need to restructure the TRIPS and TRIPS plus IP regime, which not only prevent access to affordable medicine, but also failed to deliver access to R&D needs of developing countries. It emphasises providing enough policy space for countries to design their patent laws, especially to address product access to medicine, and scrapping of the compulsory product patent protection under the TRIPS Agreement as critical to serve this purpose.