The Global South has long been clamouring for an interpretation of the TRIPS agreement which allows countries the flexibility to legislate for their specialised domestic needs. This has been met with strict resistance from the trade intensive, technology possessive North that favours an interpretation of the TRIPS with little or no flexibilities, and aggressively campaigns for the imposition of this interpretation on the rest of the world. In such a situation, much needed validation for the position that developing countries have taken came on the anniversary of the TRIPS agreement in the form of a Declaration on Patent Protection released by the Max Planck Institute in association with a number of the foremost IP scholars from around the world.
The declaration/report is interesting in many aspects. First, the composition of the panel of IP scholars who made the report is diverse and includes voices from within countries that are looking to use these flexibilities, as well as voices from within countries such as the US that have traditionally taken a more hard-line view (often negotiating for TRIPS+ commitments) and yet reaches the conclusion that the TRIPS agreement may be interpreted flexibly to account for the domestic needs that countries are faced with.
Second, the report/declaration seems disapproving of a WTO Panel report in the Canada – Patent Protection of Pharmaceutical Products dispute which interpreted the TRIPS agreement quite restrictively with regards to the exceptions contained in Art. 30 (Bolar exemption) and 31 (compulsory licenses) of the Agreement. It notes that the WTO Panel had incorrectly subjected these exceptions to Art. 27.1 when differentiation does not really apply to these articles at all.
Third, the report/declaration comes at an interesting time and is cause for optimism in the ongoing controversy between the US and India and the upcoming Special-301 report due this month. A large chunk of the allegations that the US makes with regards to TRIPS incompatibility of Indian IP laws is meticulously considered (although in principle and not specifically with regards to the Indian Law) and broken down to an extent where the TRIPS “inconsistencies” do not exist at all.
Fourth, the report/declaration makes another pertinent observation at multiple places. It notes that the WTO TRIPS agreement, being at the end of the day, an international agreement must be interpreted in light of the corpus of pre-existing International Law and “principles, including regimes dealing with human rights and biological diversity” (Art. 31 (3) of the Vienna Convention on the Law of Treaties, if anyone is listening). Now, this brings in a number of declarations like the Doha Declaration on TRIPS and Public Health and the Paris Convention for the Protection of Industrial Property along with its numerous flexibilities into the interpretative fold of the TRIPS agreement and reiterates that flexibilities are an inherent component of the TRIPS agreement. It also considers principles like in dubio mitius which refers to an interpretation of an agreement that upholds the sovereignty of a nation in case of a conflict of interpretations.
The document itself is composed of two parts: The first is an elaboration on what the MPI Panel believes is an accurate interpretation of the TRIPS agreement with regards to patents and the second part is a declaration by the panel adopting these principles.
The MPI Panel in its analysis in the first half covers a number of aspects of patentability under the TRIPS agreement. These include the patentability criteria, differentiation, compulsory licenses, disclosure requirements, exhaustion among others. It begins with an elucidation on the principles that are considered the basis of patent protection and states that the underlying rationale is to provide adequate incentives to innovate. It cautions however that a failure in the market with regards to innovation is not always linked to inadequate patent protection.
It clarifies in no mixed terms that compulsory licenses and exceptions thereof are not subject to the requirements under Art. 27.1 of the TRIPS agreement, that differentiation with regards to patentability, disclosure, patentable subject matter etc. are allowed by the TRIPS, that international exhaustion is not inconsistent with the principles of the TRIPS, especially articles 27 and 28. It also clarifies that addition disclosure requirements that are required to work a compulsorily licensed patent can be imposed and that patent protection is not to be provided to a patent which has been insufficiently disclosed.
There is an interesting section also on injunctions which contains principles on which injunctions may be granted against alleged infringers. It captures most of the requirements of Order 39 of the CPC fairly nicely but seems a little tilted towards the alleged infringer. Government use has been considered to be not limited. Criminal sanctions for infringement have also been advised against.
I’d like to conclude with an observation that the report/declaration makes with regards with another WTO dispute, (EU – Seizure of Generic Drugs in Transit) that of transit of allegedly infringing products. It states that “Customs authorities and courts of the country of transit usually lack competence to determine whether goods in transit are infringing in the countries of origin or destination and cannot decide to grant preliminary or permanent injunctions in their respect.”
The declaration is a promising interpretative tool that explores TRIPS flexibilities. Here’s hoping that the developed world takes note and it meets with the success that it deserves.
IPKat just published a post inviting people to sign the declaration which can be found here.
A while ago, the Max Planck Institute had also released a set of principles for Intellectual Property provisions in bilateral and regional agreements (read our post here).
The Declaration notes that states have not taken full advantage of the regulatory discretion available under international law (notably TRIPS). That is unfortunate. It needs states to make sure that their domestic IP laws protect their national interests as much as possible, and not just to cave in imagining there is no respite from TRIPS. I hope all governments are now reviewing the Declaration to see whether their national IP laws could be changed to make the IP system work better for them.
I hope so too 🙂 This would be extremely beneficial for most countries.