PRIVATE PATENTS AND PUBLIC HEALTH

ead in the light of the object and purpose of the Agreement as
expressed, in particular, in its objectives and principles.
b) Each Member has the right to grant compulsory licences and the
freedom to determine the grounds upon which such licences are
granted.
c) Each Member has the right to determine what constitutes a
national emergency or other circumstances of extreme urgency, it
being understood that public health crises, including those relating to
HIV/AIDS, tuberculosis, malaria and other epidemics, can represent
a national emergency or other circumstances of extreme urgency.
d) The effect of the provisions in the TRIPS Agreement that are
relevant to the exhaustion of intellectual property rights is to leave
each Member free to establish its own regime for such exhaustion
without challenge, subject to the MFN [most favoured nation] and
national treatment provisions of Articles 3 and 4.”
The use of the term “include” in the first sentence of this paragraph
makes it clear that the flexibilities in implementing TRIPS are not limited
to those listed in the Doha Declaration. Paragraphs 4 and 5(b) identify
compulsory licensing as a key measure for developing countries to limit
the exclusive rights of patent holders and to identify alternate sources of
medicines, whether through local production or importation. It
strengthens countries’ rights to use compulsory licensing and is
unambiguously clear on the fact that there are no limitations as to the
grounds for issuing compulsory licences. Paragraph 5(c) reiterates
countries’ freedom to determine what is a national emergency or
circumstance of extreme urgency. This clause is important because TRIPS
waives certain procedural requirements, such as prior negotiation with
the patent-holder, if a compulsory licence is issued in a situation of
emergency or urgency. It does not mean that a compulsory licence can
only be applied in cases of emergency or urgency. This is a common
misunderstanding regarding TRIPS.
Paragraph 5(d) resolves once and for all the question of whether TRIPS
authorises parallel trade by noting that TRIPS leaves “each Member free
to establish its own regime for such exhaustion without challenge.”
Parallel importation refers to the import and resale in a country,
without the consent of the patent holder, of a patented product that has
been legitimately put on the market of the exporting country. The sale of
the patented medicine is deemed to “exhaust” the patent holder’s rights.
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TURNING THE TIDE: THE WTO DOHA DECLARATION ON TRIPS & PUBLIC HEALTH
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