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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