PRIVATE PATENTS AND PUBLIC HEALTH

promote the public interest in sectors of vital importance to their socioeconomic
and technological development, provided that such measures
are consistent with the provisions of this Agreement.”
Developing countries also obtained transition periods for the
implementation of the TRIPS Agreement to allow them to reach a certain
level of economic development before being bound to the norms of
TRIPS. Today only the WTO’s least-developed country (LDC) members
continue to enjoy such transition periods.
The 2001 Doha Declaration strengthens the notion even further that
the TRIPS Agreement should serve a greater public good. It further
expands the freedom countries have to implement TRIPS in a manner
that takes into account specific needs with regard to health and access to
medicines.
The TRIPS Agreement sometimes specifically mentions the term
‘flexibility’, for example in Paragraph 6 of the preamble, which says “[…]
the special needs of the least-developed country Members in respect of
maximum flexibility in the domestic implementation of laws and
regulations in order to enable them to create a sound and viable
technological base.”
But all of these clauses do not take away from the fact that the TRIPS
Agreement obliges countries to give up much of the diversity and
flexibility in IP law and practices that existed beforehand. ‘Flexibilities’ is
a term used to refer to the remaining room to manoeuvre when
implementing the TRIPS Agreement.
The term flexibilities gained greater meaning in the context of the
TRIPS and public health discussions that commenced in the early 2000s
and has since then come to refer to policy space available in IP law to
protect public health.
The World Intellectual Property Organization (WIPO) secretariat has
identified the following flexibilities in the context of public health:
• Compulsory licences and government use;
• Exhaustion of rights (parallel importation);
• Research exemption; and
• Regulatory review exception (Bolar-type exception; that is, an
exception to facilitate regulatory approval of generic medicines by
allowing use of patented material before the end of the patent term).
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CLOSING THE POLICY SPACE: TRADE AGREEMENTS AND TRIPS-PLUS MEASURES
TRIPS leaves, however, larger policy space than the areas listed above,
and allows for a degree of differentiation in the implementation of its
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