Which of the following Is the Most Important (And Controversial) Provisions in the Trips Agreement
Access to life-saving medicines is a fundamental human right and, as such, trumps all other claims in this area. The reason why this issue is so complex and so hotly debated is that the right must be granted in order to satisfy that right. In other words, in order to finance the development of essential medicines, the manufacturers of these medicines must be financially compensated by the users of the medicines they cannot afford in this case. Since access to essential medicines is a fundamental human right, those who cannot afford these medicines should theoretically be provided free of charge or at a reasonable cost. Based on the above argument, the problem of the TRIPS Agreement is defined in the context of global public health: the fundamental human rights of the populations of developing countries must be respected without hindering the development of new drugs that serve to promote the satisfaction of this right. In November 2015, the TRIPS Council agreed to extend exemptions from the protection of pharmaceutical patents and undisclosed information for least developed countries until 1 January 2033 or until they cease to be members of the least developed countries, whichever is earlier. They are also exempt from the otherwise applicable obligations to accept the filing of patent applications and to grant exclusive marketing rights during the transitional period. Under the TRIPS Agreement, WTO members have considerable flexibility to adapt their approaches to intellectual property protection and enforcement to their needs and to achieve public policy objectives. The agreement provides sufficient space for members to balance the long-term benefits of incentivizing innovation with the potential short-term costs of restricting access to the creations of the mind. Members can reduce short-term costs through various mechanisms allowed by travel regulations, such as. B exclusions or exceptions to intellectual property rights. And when there are trade disputes over the application of the TRIPS Agreement, the WTO dispute settlement system is available. In accordance with Article 4(d), a Member may exempt from the most-favoured-nation obligation all benefits, advantages, privileges or immunities of that Member arising from international agreements for the protection of intellectual property which entered into force before the entry into force of the WTO Agreement, provided that such agreements are notified to the Council on the TRIPS Agreement and that there is no arbitrary or unjustifiable discrimination against nationals.
other nationals. Although the TRIPS Agreement introduced harmonization, it did not create a world of unitary patent policies and levels of patent protection. In other words, a number of countries could all be in compliance with the TRIPS Agreement, but all have differences in the details of their national IP systems. There are two reasons for this. First, the TRIPS Agreement is not a self-executing piece of legislation, but an agreement that prescribes and prohibits different practices and leaves it to countries to implement it. For example, the TRIPS Agreement sets out a number of conditions that should be met when granting compulsory licenses, but how are these conditions implemented in national patent systems (What kind of behavior of patent holders is a reason for granting compulsory licenses? Can the Ministry of Health act alone? Should there be a health emergency and, if so, how is it determined and who explains it?) was determined on the spot. This means that the TRIPS Agreement has given countries policy options (Commission on Intellectual Property Rights, 2002; Correa, 2000) and countries could – and did – comply with the TRIPS Agreement differently. Second, the TRIPS Agreement dealt with most laws, not so much with enforcement practices. This means that countries may differ not only de jure (e.g. B the three political levers or the details of the compulsory licensing rules), but also de facto because of the application of their new laws. And there is evidence of significant discrepancies between the de jure and de facto levels of intellectual property protection (Maskus, 2000; Shadlen, Schrank & Kurtz, 2005). A recent study (Papageorgiadis & McDonald, 2019) shows that de jure IP protection differs significantly from de facto IP protection for several middle- and low-income countries.
Figure 1 comes from their article and shows the two dimensions of de jure and de facto IPRs on both axes.12 Watal J., & Taubam, A. (Eds.). 2015. The Emergence of the TRIPS Agreement: Personal Lessons from the Uruguay Round Negotiations. Geneva: WTO. There are two types of patents: process patents and product patents. Process patents are those relating to the process of producing or producing an invention. This contrasts with a product patent, which is a patent on the good itself (the product of the process). Under a product patent, a particular invention is protected regardless of the process used to manufacture it, but under a process patent, only the particular process used to manufacture the product is protected. .