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6 J. World Intell. Prop. 5 (2003)

handle is hein.journals/jwip6 and id is 1 raw text is: Balancing Trade in Patents Public Non-Commercial Use and Compulsory Licensing E. Richard GOLD* and Danial K. LAM** INTRODUCTION If it had not been clear before, the discussions at the 2001 Fourth World Trade Organization (WTo) Ministerial Conference in Doha, Qatar, demonstrated the international community's interest in examining the limits of countries' rights to use or to grant others rights to use patented inventions without the consent of the patent owner.' These, and similar discussions, focused on the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement),2 particularly its provisions governing compulsory licensing. At issue was the application of international trade rules to pharmaceutical products used in treating HIv/AIDs. While compulsory licensing provisions are often contentious, they had rarely hit the public spotlight. This changed with the HIv/AIDs epidemic and threats by the United States against countries that had issued or even threatened to issue compulsory licences for HIv/AIDS medications. In particular, both ambiguity in the language of the TRIPS Agreement itself and ideological differences over the proper scope and role of patents led the United States and South Africa to the brink of a potential trade dispute at the turn of the millennium regarding a South African law that would grant its citizens access to affordable, generic forms of Hiv/AIDs drugs.3 Access to these pharmaceuticals is especially pressing for developing nations. Of the estimated 40 million people worldwide living with HIv/AiDs at the end of 2001,4 nearly 70 percent of them live in Sub-Saharan Africa.5 Seven million South Africans * Bell Chair in e-Governance, McGill Faculty of Law, Montreal, Canada. ** Student-at-law, Torys LLP, Toronto, Canada. The authors wish to thank Erin Rogozinski for her editorial assistance and Milosz Zemanek for his research help. They also gratefully acknowledge the financial assistance of Torys LLP. The authors may be contacted at: <<richard.gold2@mcgill.ca>>. M. Nolff, Compulsory Patent Licensing in View of the WTo Ministerial Conference Declaration on the TRIPS Agreement and Public Health, 84 J. Pat. & Trademark Off Soc'y 133, 2002, available at: WL (JLR). 2 Legal Instruments-Results of the Uruguay Round, Agreement on Trade-Related Aspects of Intellectual Property Rights, 15 April 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex IC, 33 I.L.M. 81, 1994. 3 See Pharmaceutical Manufacturers' Association of South Afiica v. President of the Republic of South Africa, Case No. 4183/98, filed 18 February 1998; M. Cherry, South Africa May Keep its Doors Closed to Generic AIDs Drugs, 410 Nature 1013, 2001; K. Birmingham, South Africa vs. Big Pharma, Nature Medicine, Vol. 7, No. 4, 2001, p. 390. 4 See the Joint UN Programme on Hiv/Amns (UNAIDS), Ains Epidemic Update-December 2001, available at: <<http://www.unaids.org/epidemicupdate/report dec01/ > (accessed 29 August 2002). s That is nearly 28 million people with Hiv/AIns; ibid.

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