The Doha Declaration does not cover all the areas where flexibility of the TRIPS Agreement exists, such as the exceptions to patent rights (Article 30) and the protection of data submitted for the registration of pharmaceutical (and agrochemical) products (Article 39.3). Nor does it refer to the room left to Members to determine the patentability standards in ways that prevent patenting strategies aiming at expanding or temporally extending the protection conferred in the pharmaceutical field131.
131 See, e.g., Correa, 2001.
Proposals made in the pre-Doha negotiation phase by different Members included, inter alia, language on the need to prevent diversion of drugs sold at discounted prices in developing countries to high-income markets132, and to ensure that data protection requirements of Article 39.3 do not become a barrier to the registration and introduction of generic drugs and the use of compulsory licensing133. The USA proposed a five year moratorium on dispute settlement action in relation to “non-violation” complaints, which was limited to sub-Saharan African countries134.
132 The EC regretted that this issue was not dealt with by the Conference (European Commission, 2001, p. 6).
133 See IP/C/W/296.
134 Acceptance of this proposal would have implied that Article 64 of the TRIPS Agreement on “non-violation” complaints could be immediately applied to any other Member, something that most Members rejected since the scope and modalities of such complaints have not been determined yet by the Ministerial Conference.