Trips plus Free Trade Agreement

150 150 bartekz

In recent years, a maximalist trend towards intellectual property (IP) rights has been observed among high-income countries when negotiating bilateral, regional and multilateral trade agreements. Indeed, the intellectual property provisions contained in recent trade agreements known as TRIPS-Plus tend either to go far beyond the global minimum standard for intellectual property set out in the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), or to eliminate the flexibility that this multilateral agreement gives its members to promote universal access to property rights. intellectual. (Chen et al., 2013). It is therefore important to point out that the agreement has adopted a close understanding of this possibility as well as a significant vagueness in its wording, which leads to ambiguities as to the impact of the provisions of the agreement on public health. As a result, many low- and middle-income Member States have raised public awareness of the potential negative impact of these regulations on patents. Since joining the World Trade Organization (WTO) in 2001, China has focused intensively on strengthening the protection of intellectual property rights. In addition, China signed a phase one trade agreement with the United States in 2019 to further accelerate this process. These strengthened intellectual property rules go beyond what is required by the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) and have become known as the provisions of the TRIPS Agreement Plus. This article, which extends the term of a patent holder`s exclusive right to his invention beyond the twenty years set out in the TRIPS Agreement, has a significant impact on Vietnam`s ability to access affordable medicines, as patent protection implies that a creation cannot be produced. imported or sold commercially without the consent of the patent owner. Recently, there has been a trend in international trade regarding the regulation of intellectual property, particularly patent law. Indeed, it can be noted that developed countries, including the United States, Japan and the EU, are currently pressuring developing countries to implement stricter intellectual property regulations, either by restricting the use of flexibilities permitted by the TRIPS Agreement or by far exceeding the global minimum standard for intellectual property protection set out in the agreement.

The agreement establishes a global minimum standard for patent regulation, which must be respected by Member States. In fact, the agreement only stipulates that patents must be granted for new, inventive and useful processes and products, leaving members the prerogative to decide whether a new formulation of a drug or a new combination of existing molecules deserves a new patent (Médecins Sans Frontières Access Campaign, 2020). Therefore, the intention of this trial is to provide evidence showing that the inclusion of the provisions of the TRIPS Plus Agreement in recent trade agreements is a strategic step taken by high-income countries to limit generic competition in the pharmaceutical industry, which represents the countries of the South, as it increases the capacity of developing countries to obtain affordable medicines, that are needed to combat the HIV epidemic. Indeed, these provisions, which restrict the possibility of using the flexibilities allowed by the TRIPS Agreement, tend to maximize the public health benefits of the richest countries in developing countries by restricting competition between generics and patented medicines. In particular, intellectual property and patents have become one of the most discussed issues on access to medicines since the establishment of the World Trade Organization (WTO) and the entry into force of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). Patents are by no means the only barriers to access to life-saving medicines, but they can play an important, even crucial, role. During the period of patent protection, the patent owner`s ability to set prices in the absence of competition may make the drug unaffordable for the majority of people living in developing countries. This first edition of the South Centre Training Material aims to provide an introduction to key issues in the field of access to medicines and intellectual property in its first part. The second part describes and defines some basic terms and concepts of this relatively new area of pharmaceutical policy, which are aspects of trade-related intellectual property rights that govern the research, development and supply of medicines and health technologies in general.

Han Bing is a senior fellow at the Institute of World Economics and Politics (IWEP) of the Chinese Academy of Social Sciences (CASS). Han Bing`s research interests include international investment law, international trade law and the Chinese business environment. Data exclusivity and other provisions of the TRIPS Agreement plus are often encouraged in the context of free trade agreements between developed and developing countries. Therefore, in the first part, this essay will address the global minimum standard for intellectual property protection established by the 1995 TRIPS Agreement with respect to patent regulation, as well as the theoretical arguments for including stricter intellectual property provisions in recent trade agreements. Subsequently, this paper will challenge these arguments by demonstrating that the provisions of the TRIPS Plus Agreement are largely justified on for-profit grounds and pose a serious threat to public health in developing countries, as they restrict access to basic HIV treatment by delaying the entry of cheaper generics into domestic markets and leading to significant increases in drug prices. This test will conclude that the theoretical justifications in support of the provisions of the TRIPS Plus Agreement may be considered reasonable in part, but once applied to the reality of international trade, they tend to reveal their shortcomings. Therefore, the inclusion of the provisions of the TRIPS Plus Agreement in recent trade negotiations serves primarily as a strategic tool in the hands of developed countries to avoid competition with cheaper generics manufactured in developing countries, but to the detriment of developing countries` ability to access affordable antiretroviral therapies for HIV treatment. Since its inception, a considerable amount of literature has been published on the impact of the TRIPS Agreement on public health, but too little attention has been paid to the fact that the provisions of the TRIPS Plus Agreement have a much more negative impact on the affordability of treatments for communicable diseases such as human immunodeficiency virus (HIV), which affects the lives of 37.9 million people (, 2019).

Major developing countries, among others, are currently promoting this counter-attack and are the first to queue up for this demonstration. India, for example, produces 80% of the HIV generics used by Médecins Sans Frontières (MSF) to treat more than 200,000 people in developing countries. India produced these drugs freely until 2005, when it was obliged to grant patent protection under the TRIPS Agreement (Médecins Sans Frontières Access Campaign, 2017). However, the country has decided to amend its national patent law, including protections, such as strict standards for what a patent deserves, to find a fairer balance between recognizing intellectual property protection and protecting the right to affordable medicines. The multinational pharmaceutical industry, which supports the United States, the European Union and other countries, is currently pressuring India to strengthen its intellectual property regulations to ensure more monopoly power for pharmaceutical companies that manufacture branded drugs at the expense of protecting public health. This phenomenon poses a potential threat not only in terms of drug affordability in India, but also globally. If the Indian government decides to abandon this challenge, it could be catastrophic for millions of people living in developing countries around the world and for international organizations such as Médecins Sans Frontières, which rely on Indian generics to ensure sustainable and affordable treatments around the world (Médecins Sans Frontières Access Campaign, 2017). A number of studies have identified data exclusivity as one of the elements of free trade agreements that affects the price of market-available medicines by limiting the possibility of international competition in this particular area. According to Oxfam (2007), Jordan relied mainly on generics before 2000, but the US-Jordan Free Trade Agreement signed in 2001 „resulted in a 20% increase in drug prices and delayed the introduction of generics for 79% of newly introduced drugs” (Malpani, 2007, p. 2).

In addition, drug prices were two to ten times higher than those of Egypt, which did not adopt the TRIPS Plus guidelines, and „additional spending on drugs without generic competitors was estimated to be between $6.3 million and $22.04 million” (Malpani, 2007, p. 2). Despite the Doha Declaration, many developing countries have come under pressure in recent years to enact or implement even stricter or more restrictive conditions in their patent laws than required by the TRIPS Agreement – these provisions are referred to as „TRIPS plus”. Countries are in no way obliged to do so under international law, but many, such as Brazil, China or central American states, have had no choice but to adopt them under trade agreements with the United States or the European Union. .



All stories by: bartekz