Browsing by Subject "TRIPS Agreement"

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    Access to antiretroviral drugs in South Africa: the HIV/AIDS crisis in the light of the TRIPS Agreement, South African intellectual property and competition law
    (2011) Voogd, Janina; Thong, Lee-Ann
    The HIV/ AIDS crisis has reached a high degree of prominence and awareness in both developed and developing countries. However, at the same time rural areas with no, little or very inaccurate knowledge of the HIV/AIDS problem can still be found all over the world. Furthermore, it seems that the awareness for the problem has had its peak a few years ago and that, since then, it has decreased at least on the international level. It somehow appears that the immense crisis is not seen as such nowadays and that people all over the world - but particularly in many third-world countries - have accommodated to its cruel results. The dimensions of HIV/ AIDS seem to be taken as some kind of bizarre normality in many countries. Furthermore, the developed world appears to have acknowledged the fact that developing countries and HIV/ AIDS present an inseparable phenomenon.
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    Intellectual property rights and competition policy: patent rights, access to life-saving drugs in developing and least-developed countries under the TRIPS Agreement and the future of TRIPS after the Article 31 bis Amendment
    (2009) Brucker, Johanna; Davis, Dennis
    This paper examines the interface between intellectual property rights, the issuing of patent protection under the TRIPS Agreement and access to essential medicines. at affordable prices in developing and least-developed countries. It considers the link between patent protection under TRIPS and competition policies by highlighting the clash between intellectual property rights and competition law. The negative impact of intellectual property rights and patent protection on access to available and affordable drugs plays a major role in the discussion related to the international pharmaceutical market. In 1995 the World Trade Organization introduced the Agreement on Trade related Aspects of Intellectual Property Rights. Since the Doha Declaration was adopted in 2001, only a few countries have made use of the flexibilities under TRIPS. This study examines the use of TRIPS flexibilities for the access on essential drugs in developing and least-developed countries and sets out the impact of the Doha Declaration of 2001 and the Amendment to TRIPS of 2005 on the TRIPS Agreement. Governments worldwide are considering whether to ratify the Article 31 bis Amendment. This study argues that a failure to accept and use Article 31 bis will undermine the Doha Decision and the General Council Decision of 2003; it will result in an immense negative impact on health treatment for people in poor small countries. Furthermore, the paper discusses the interface between competition law and the intellectual property system under the TRIPS Agreement after the European Microsoft case and explores the relationship between patent protection under TRIPS, monopolies and anti-competitive behaviour in the market by abusing the dominant position granted by the exclusive patent right. Finally, it highlights factors influencing the future of TRIPS, suggests some action for an effective use of the flexibilities of TRIPS for a broader access on affordable and available medicines in developing and least-developed countries and seeks to examine the reconciliation of the clash between intellectual property rights and competition policies.
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    Is the TRIPS Agreement and its' safeguards still a stumbling block in fulfilling the right to health and if so what should be done?
    (2010) Gill, Alison Elizabeth; De Vos, Pierre
    In order to meet the Millennium Development Goals by 2015 the world must radically rethink the means of achieving the targets set by these Goals. The developing world is crippled by poverty and disease; HIV/ AIDS is rife in Africa and is spreading at frightening speed to many other parts of the globe. World Health Organisation (WHO) figures suggest that in 2008 33 million people were infected with HIV. Chapter I shall consider the problem of the AIDS/HIV epidemic in more detail and the international response so far. The chapter shall then look at the various sources of international law within a human rights context to determine whether states have an obligation to do something about the disease.
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    Is the TRIPS Agreement and its' safeguards still a stumbling block in fulfilling the right to health and if so what should be done?
    (2010) Gill, Alison Elizabeth; de Vos, Pierre
    In order to meet the Millennium Development Goals by 2015 the world must radically rethink the means of achieving the targets set by these Goals. The developing world is crippled by poverty and disease; HIV/ AIDS is rife in Africa and is spreading at frightening speed to many other parts of the globe. World Health Organisation (WHO) figures suggest that in 2008 33 million people were infected with HIV. Chapter I shall consider the problem of the AIDS/HIV epidemic in more detail and the international response so far. The chapter shall then look at the various sources of international law within a human rights context to determine whether states have an obligation to do something about the disease. Preventative strategies on their own however will not effectively deal with the pandemic; in order to reverse the tide medical professionals also require access to essential drugs to treat patients already infected. One of the greatest hurdles to overcome is the patentability of pharmaceuticals in the health sector; such patents are undoubtedly limiting the availability and affordability of the life saving anti retroviral medicines (hereinafter ARV's) required to treat the disease. If we are to combat HIV/ AIDS and other diseases it is essential that society looks towards changing the pharmaceutical protection that is afforded under the TRIPS Agreement. Under this Agreement pharmaceutical manufacturers are able to patent their brand of drug which prevents other companies from selling the same drug without the patent owner's permission for a potential period of 20 years. At present the vast majority of the world's developing population are unable to afford costly life saving medicines. The TRIPS Agreement and the concept of pharmaceutical patents allow drug manufacturers to keep the cost of medicine high without the fear of competitor drugs and the medicines can therefore be given an artificially high price. In the context of HIV/AIDS, in developing countries where people often have to pay for ARV's out of their own pocket it is vital that they are affordable. Countries like India have previously been able to manufacture cheaper generic medicines as the pharmaceutical industry was not protected under Indian patent law, but since the introduction of the TRIPS Agreement, pharmaceuticals now fall under the rules of international intellectual property protection. Chapter 2 aims to discover the concept behind intellectual protection for pharmaceuticals, it shall also look at the international regulatory bodies of intellectual property. The World Trade Organisation is the international forum in which the TRIPS Agreement was born and one of the main objectives of the organisation as a whole is to increase standards of living, yet the concept of drug patenting appears to contradict this objective. The TRIPS Agreement therefore includes flexibilities to allow WTO Members to be able to provide essential medicines including ARV's to the public, Chapter 3 shall begin by looking at the TRIPS Agreement and the safeguards provided within the agreement. Over the last decade the provisions of the TRIPS Agreement has been a disputed issue and the Agreement has undergone changes during further WTO negotiation rounds. Concerns were aired during the World Trade Organizations negotiations in 2001 at the Doha Ministerial Conference and the topic has remained a controversial one ever since. Chapter 3 shall continue by looking at the international declarations created from recent WTO negotiations. Developing countries are pushing for an even broader scope of patent applications which would result in more pharmaceutical products becoming patentable for 20 years. As the process of globalisation continues, new trade agreements are having a greater impact upon access to drugs. On the one hand inventors should be rewarded for their efforts in researching and developing medicines, on the other, humanity has a right to health which includes access to treatment. International Law is often faced with conflicting rights; in this situation a balance must be struck which reflects the interests of the right to health and the right to intellectual property protection. In recent years the link between the right to health and the topic of medical patents has become an issue for debate on the world stage. The enforcement of the Agreement on Trade-Related Aspects of Intellectual Property has to some extent harmonized patent laws and set a higher minimum standard of protection and for the enforcement of intellectual property for countries to guarantee. This has greatly worried many developing nations and health organisations in relation to the impact this has on access to essential medicines especially in the area of HIV/ AIDS treatment. Chapter 4 shall look at the conflicts of norms in international law and how such situations should be dealt with in both a human rights context and within the WTO framework. Modern technology makes it possible to treat many diseases including HIV, however until an effective mechanism in dealing with the problems of patenting is enforced the health of some of the poorest nations are unable to benefit. Chapter 5 shall look to the possible solutions in solving this conflict. The outcome of this dissertation is to show that the current (amended) Agreements and Declarations are still failing in their intention to provide that balance between the right to health and intellectual property rights, using access to HIV/ AIDS medicines as a prime example. It shall be argued that conflicts between these norms in International Law must be addressed, and the current flexibilities in the TRIPS Agreement should be reviewed.
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    Protecting traditional knowledge - does secrecy offer a solution?
    (2010) Tong, Lee-Ann
    The shortcomings of using the intellectual property system to safeguard the interests of traditional knowledge holders have received considerable attention. Laws that guard against the disclosure of secret traditional knowledge to non-community members may offer a low-cost and accessible way for traditional communities to prevent the misappropriation of their traditional knowledge. This paper reviews the concerns that may arise when holders of traditional knowledge attempt to rely on claiming unfair competition and contract laws to protect their traditional knowledge.