(2004; 110 pages)
II.1. An Overview of Public Health-related TRIPS Flexibilities
The adoption of the TRIPS minimum standards resulted into a significant loss of policy flexibilities by developing countries in regulating the granting and use of pharmaceutical patents and controlling the cost of medicines. However, the Agreement left some room for countries to take public interest measures including measures to protect public health. The Doha Declaration recognized that the TRIPS Agreement does not prevent Members from taking measures to protect public health. At Doha, WTO Members also reaffirmed the right of each Member to use to the full, the provisions of the Agreement which provide flexibility for protecting public health and, in particular, for promoting access to medicines for all.
There are a number of such flexibilities which developing countries can use to address some of the negative consequences of pharmaceutical patents. The main flexibilities include: compulsory licensing; parallel importation; provisions relating to patentable subject matter; provisions relating to exceptions to patent rights; provisions relating to data protection; and provisions relating to abuse of rights, competition and the control of anti-competitive practices. The following is an overview of each of these flexibilities.10
10 For a detailed discussion of most of these public health-related TRIPS flexibilities see Correa (2000).