Solutions for restoring public interest: TRIPS flexibilities

© Crispin Hughes/Panos
If it forces emergent countries to grant more patents, including for medicines that were previously covered by exemptions from patenting in many countries, the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) also gives countries room to manoeuvre regarding how their legislation is applied. It foresees “flexibilities”, which are essential for guaranteeing access to medicines for all.

To compensate for the monopolies that patents attribute de facto to their holders, the TRIPS Agreement allows countries to determine themselves the definition of an invention, the criteria to be applied when judging their suitability for patenting, the rights accorded to holders of patents, and authorised exceptions, as long as they remain in the framework fixed by the agreement. This is what India decided for its law on patents, which resulted in a legal wrangle with Novartis around the anti-cancer drug Glivec.

The TRIPS Agreement also includes escape clauses allowing member states to assert specific needs in terms of public health in spite of the protection of patents currently in force. These clauses, grouped under the term of “TRIPS flexibility” were confirmed and detailed in the very official Doha Declaration on the TRIPS and public health, adopted in November 2001 during a heated WTO ministerial conference in Qatar.