The Use of TRIPS Flexibilities by Emerging Countries

Resumen

The patent law has been harmonized at the international level in 1994 by the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). In practice, this text requires all member States of the World Trade Organization (WTO) to recognize the patentability in all industrial sectors. A pharmaceutical patent shall then be granted for any pharmaceutical invention insofar as it fulfills all three criteria for patentability: novelty, inventive step and industrial application. Thus, developing countries can no longer copy molecules protected by patents. At first glance, the trips Agreement completely prevents the development of pharmaceutical industries in the most advanced developing countries from a technological point of view –emerging countries– and dried up sources of supply of cheap medicines for poor countries. However, if the trips agreement strengthens the protection of intellectual property rights, flexibilities have been provided by the wto law to ease international patent law under certain circums-tances, like public health considerations. The objective of this article is then to show how India, Brazil and Thailand, are using some of these flexibilities to ease the general principle of pharmaceutical inventions patenting according to their development goals, so that other emerging countries can inspire themselves by these examples.