Ms. Archie Garg, Symbiosis Law School, Pune
ABSTRACT
The aim of TRIPS is to offer access to mandatory medicines in situations of national public health urgency by issuing a compulsory license of a patented medicine. The drafters’ intention was to level intellectual property rights with access to cost-effective medicines. Yet the ambiguity of TRIPS and its compulsory license clauses, particularly Articles 30 and 31, has resulted in much dispute and resistance. Article 31 provides a more elaborate exception to a patent holder’s sole rights, particularly the compulsory license exception. This exception needs a third party to first aim to discuss a voluntary license with the patent holder before asking for a compulsory license through the third party’s government. But Article 31 permits third parties to omit the voluntary license discussion in matters of “a national urgency or other situations of extreme emergency or in matters of public non-commercial use.” This urgency compulsory license exception is restricted to requiring compulsory licenses to be “authorised predominantly” for domestic use. However, with the detailed deliberations regarding paragraph 6 of the Doha Declaration on compulsory licensing, the conundrum got resolved but only to a certain extent. With the emergence of new chronic diseases, a lot needs to be seen how the latter along with several other developments, will help in facilitating the availability of drugs for developing nations in the existing world order
