返回Google圖書搜尋

The Ostensible Flexibilities in TRIPS

其他書名	Can Essential Pharmaceuticals Be Excluded from Patentability in Public Health Crises?
出版	SSRN, 2014
URL	http://books.google.com.hk/books?id=7NbdzwEACAAJ&hl=&source=gbs_api

註釋The requirement that a country sign up to the complete package of World Trade Organization ('WTO') agreements in order to join the organization has been problematic for developing countries, entailing institutional reforms which are arguably ill-suited to their needs; particularly those of the least developed members. The WTO has emphasised that the 'flexibilities' provided by the compulsory licensing provisions in the Agreement on Trade-Related Aspects of Intellectual Property Rights ('TRIPS') allow developing countries to determine their own national health policies and access essential pharmaceuticals. While political attention currently focuses on compulsory licensing under TRIPS, this article examines the article 27(2) of TRIPS, which allows members to exclude inventions from patentability if certain criteria are met. The article argues the approach of future dispute settlement panels and the Appellate Body will be shaped by jurisprudence on both the General Agreement on Tariffs and Trade ('GATT')'s exception provision and the European Patent Convention. This jurisprudence shows that a very high threshold must be met in order to invoke unilateral trade restrictions or exclude an invention from patentability. This means it is likely that developing countries would have significant difficulty invoking article 27(2) of TRIPS to exclude certain pharmaceuticals from patentability in order to enable affordable access for those affected by diseases such as HIV-AIDS.