Try the beta replacement for EFS-Web, Private PAIR and Public PAIR. That was partly by design: it permits trade restrictions if they protect health. For compulsory licensing, it’s when the generic copy is produced mainly for the domestic market, not for export. For their part, industrialized countries have elected not to use it for imports. It created international criminal penalties for anyone found abusing trademarks and copyrights through counterfeiting or piracy. If ever there were a time to suspend global patent rules to ensure widespread distribution of a vaccine, right now is it. For the main part the declaration was important for clarifying the TRIPS Agreement’s flexibilities and assuring governments that they can use the flexibilities, because some governments were unsure about how the flexibilities would be interpreted. When the pandemic first struck the WTO seemed largely irrelevant. What has changed is a provision that used to say that compulsory licences must be granted mainly to supply the domestic market (paragraph (f) of Article 31). Essentially, the waiver, which needs approval by three-quarters of WTO members, would empower WTO member states to neither grant nor enforce patents or other TRIPS rules related to COVID-19. (Whereas under a compulsory licence buyers would have to pay some royalty, under the proposed waiver they would not.). Just to be clear, if a compulsory licence is issued it could be under the original TRIPS Agreement and not under the amended arrangements? Intellectual Property Magazine is the definitive information source for practitioners, providing in-depth coverage and analysis of all the latest trends in IP law. ... (a “plurilateral” agreement because it is signed by only a few WTO members) extends competition rules to purchases by thousands of government entities in many countries. The special compulsory licensing system in the amended TRIPS Agreement, and the earlier 2003 waiver decision, (sometimes called the “Paragraph 6 System” because it refers to paragraph 6 of the Doha Declaration) only deals with compulsory licences to produce medicines expressly for export. The TRIPS Agreement does list a number of conditions for issuing compulsory licences, in Article 31. Amendment by Pub. Check application status. This decision is for the authorities in the country concerned. Because it concerns production for export, those countries seeking to export under the system may need to amend their laws to ensure that such production is permissible under compulsory licences. the patent-holder can continue to produce), and it should be subject to legal review. Bernard Hoekman of the European University Institute calculated that over a similar period GTA recorded more than twice the number of trade measures reported to the WTO. As for other products, Bryan Mercurio of the Chinese University of Hong Kong says that if governments have not issued compulsory licences, often the problem is not with the existing trade rules but with their own domestic lawmaking. For “national emergencies”, “other circumstances of extreme urgency” or “public non-commercial use” (or “government use”) or anti-competitive practices, there is no need to try first for a voluntary licence. Members’ failure to alert the WTO of their actions was more egregious. There’s more. The TRIPS Agreement does not specifically list the reasons that might be used to justify compulsory licensing. Not necessarily. Many news stories are about compulsory licences issued primarily to supply domestic markets. As far as the TRIPS Agreement is concerned, yes. File a patent application online with EFS-web. Not in general. ■, This article appeared in the Finance & economics section of the print edition under the headline "In search of a cure", A daily email with the best of our journalism, Published since September 1843 to take part in “a severe contest between intelligence, which presses forward, and an unworthy, timid ignorance obstructing our progress.”. Two provisions to do with least-developed countries and countries that do not have production capacity directly involved changes to the rules of the TRIPS Agreement. According to the Annex to the Amended TRIPS Agreement, the mechanism covers pharmaceutical products, including medicines, vaccines and diagnostics, needed to fight an epidemic. But what about the November 2001 Doha Ministerial Declaration on TRIPS and Public Health? How America’s blockbuster stimulus affects the dollar, China’s budget forecast is more informative than its growth target. It is one of the flexibilities in the field of patent protection included in the WTO’s agreement on intellectual property — the TRIPS (Trade-Related Aspects of Intellectual Property Rights) Agreement. GENEVA: The World Trade Organization's (WTO) first female and first African director-general Ngozi Okonjo-Iweala began work on Monday (Mar 1), … Now the TRIPS Agreement has been amended to provide for an additional type of compulsory licensing. FIXING THE World Trade Organisation (WTO) is not enough for Ngozi Okonjo-Iweala, the first woman and first African to lead it. Didn’t that change the rules? 74B. (footnote 3 of the Annex to the Amended TRIPS Agreement and footnote 3 of the 2003 waiver decision). WTO Members have carried out urgent legal amendments to their national patent laws to expedite the process of issuing compulsory/government use licenses. Copyright © The Economist Newspaper Limited 2021. This weblog is intended primarily for other attorneys. And so on. They also say the existing WTO IP rules contain provision for so-called compulsory licenses, intended specifically for emergency situations. And today’s supply constraints reflect manufacturing bottlenecks rather than patent protection. It's therefore a compulsory licence specially for production in one country, for export, to meet the public health needs of one or more other countries. Normal compulsory licences can be granted for all types of products or technologies, provided the conditions in Article 31 are met. 74A. Compulsory licensing is when a government allows someone else to produce a patented product or process without the consent of the patent owner or plans to use the patent-protected invention itself. The only compulsory licence needed would be in the supplying country, if indeed the medicine is patented in that country. "Patent Docs" does not contain any legal advice whatsoever. With guidance from the World Trade Organization (WTO), member nations were required to adopt specific provisions in order to enforce the rights and settlement of disputes relating to intellectual property. What products or technologies can be covered by a compulsory licence? Yes, it’s always been the case. China became a member of the World Trade Organization (WTO) on 11 December 2001, after the agreement of the Ministerial Conference. No. But to make it work requires practical steps. The amendment to the TRIPS Agreement, which put this option on par with all other options, came into force on 23 January 2017. Your browser does not support the