5 J. World Intell. Prop. 5 (2002)

handle is hein.journals/jwip5 and id is 1 raw text is: 






Midicaments sans Frontieres?


Clarification of the Relationship between TRIPs and
      Public Health resulting from the WTo Doha
                       Ministerial Declaration



                               Paul VANDOREN*



I.  INTRODUCTION

     On  14  November   2001, the Declaration on  the Trade-Related  Aspects of
Intellectual Property Rights (TRIPS) Agreement and Public Health (see the Annex to
this article) was adopted by the one hundred and forty-two Members of the World
Trade  Organization at the Fourth  Ministerial Conference in Doha,  Qatar. This
important Declaration was the result of many hours of negotiation at the Conference
and prior discussion initiated in the Council for TRIPS by the African Group. The value
of the Declaration lies in its clarification of the relationship between the TRIPS
Agreement  and  public health policies of WTo Members   and its definition of the
flexibility of several relevant provisions of the TRIPS Agreement, in particular with
regard to patents. In addition, the Declaration is evidence that the TRIPS Agreement is
not a static instrument laying down international minimum standards of protection
exclusively for the benefit of rightholders based in the developed countries, but one
capable of reconciling intellectual property with national policies, such as in the area of
public health, in particular in developing countries.

II.  THE NEED  FOR A NEW  APPROACH   IN A NEw  ENVIRONMENT

     Since its adoption at the Uruguay Round in 1994, the TRIPS Agreement had been
criticized by developing countries, supported by a number  of non-governmental
organizations, as being an obstacle to development and to the pursuit of public health
policies by developing countries. Discussions culminated in a debate on access to
medicines  at the time when  developing  countries were under  the obligation to
implement  the TRIPS Agreement,  i.e. as of 1 January 2000. In this context, it was
alleged that the patent regime imposed by the TRIPS Agreement, and in particular the

   * Head of Unit for new technologies, intellectual property and public procurement, Directorate-General for
Trade, European Commission, Brussels, Belgium.
   The views expressed are the author's own and do not necessarily bind the European Commission. He may be
contacted at: apaul.vandoren@cec.eu.ints.

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