TRIPS flexibilities

Subject: IR

Context:

As many COVID drugs reach final stage of clinical trial, there is rising concern over equitable access of drugs.

Concept:

• Flexibilities in TRIPS are agreed upon in the 2001 Doha Declaration of the WTO
• In which it is mentioned that patents do not run against the interests of public health and access in times of a pandemic. 
• Compulsory licensing is when a government allows someone else to produce the patented product or process without the consent of the patent owner. this is usually associated with pharmaceuticals, but it could also apply to patents in any field.
• The agreement allows compulsory licensing as part of the agreement’s overall attempt to strike a balance between promoting access to existing drugs and promoting research and development into new drugs.
• But the term “compulsory licensing” does not appear in the TRIPS Agreement. Instead, the phrase “other use without authorization of the right holder” appears in the title of Article 31. Compulsory licensing is only part of this since “other use” includes use by governments for their own purposes.
• Compulsory licensing and government use of a patent without the authorization of its owner can only be done under a number of conditions aimed at protecting the legitimate interests of the patent holder.
• For example: “national emergencies”, “other circumstances of extreme urgency” or “public non-commercial use” (or “government use”) or anti-competitive practices.
• Compulsory licensing must meet certain additional requirements. In particular, it cannot be given exclusively to licensees (e.g. the patent-holder can continue to produce), and usually it must be granted mainly to supply the domestic market.