(2002; 56 pages) [French] [Spanish]
Changes in the TRIPS Agreement, or new interpretations, do not translate automatically into changes in national laws. Therefore, any solution found at the Council for TRIPS is likely to call for amendments to national laws in potential exporting countries in order to become operative. All potentially exporting countries, including developed countries, should appropriately amend national law to facilitate effective implementation of the Council for TRIPS solution to the paragraph 6 problem.
The implementation of an effective solution under paragraph 6 may also depend on the conditions under which compulsory licences are granted in the importing country. The remuneration to be paid to the patent holder should be such that it does not nullify the aim of the licence, to ensure the supply of low cost pharmaceuticals. In addition, national governments should carefully implement Article 31 (g)104 of the TRIPS Agreement, in a manner that does not undermine the incentives to apply for and execute a compulsory licence105.
104 TRIPS Article 31 (g): “[The] authorization for such use shall be liable, subject to adequate protection of the legitimate interests of the persons so authorized, to be terminated if and when the circumstances which led to it cease to exist and are unlikely to recur. The competent authority shall have the authority to review, upon motivated request, the continued existence of these circumstances”.
105 This also applies, of course, to a possible solution under Article 31 (f).