Evaluating the development of patent protection afforded to pharmaceutical products under the Agreement on Trade-Related Aspects of Intellectual Property Rights, 1994 as amended on 23 January 2017

Abstract

The rate of globalisation is increasing, and the rate of pandemic-causing viruses is rising alongside it. Since the commencement of international travel, from ancient merchant ships carrying different strains of plague, to the modern-day COVID-19 virus, diseases have had global impacts faced by all. On an individual level, those who have caught the diseases have felt the devastating impacts in their lives, on a national level everyone has felt the impact of the economic struggles caused by the diseases, and on international level, the damaging impact the diseases have had and continue to have on international trade, has resulted in long-lasting and severe negative implications. Consequently, it is in the short-term interest of all persons to have access to proper pharmaceutical products, including vaccines, to treat and prevent these diseases. Pharmaceutical products inhibit the further spread of these viruses and mitigate the catastrophic harm they can cause on a personal, national and international level. However, the pharmaceuticals needed to combat these viruses are often developed through extremely time-, labour- and capital-intensive processes. For the pharmaceutical industry to continue the research that is required to develop new pharmaceuticals, they often charge high prices for these pharmaceuticals and acquire patent protection in respect of these products. This, in turn, enables them to exercise and retain their rights in the manufacturing and distribution of these products. This inevitably monopolises the market and thus precludes a large majority of the global population from obtaining these pharmaceuticals. Consequently, an ever-present equilibrium has been sought between meeting the public health needs of the present and maintaining a system of pharmaceutical production and research that will remain economically viable as well as functional into the future. Therefore, the World Trade Organization (hereafter WTO) has taken steps to continuously develop its legal framework to protect both the long- and short-term interests of the public on a global scale. Considering the above, this study evaluates the development of the Agreement on Trade-Related Aspects of Intellectual Property Rights, 1994 (hereafter TRIPS Agreement) to answer the research question: how has the implementation and subsequent amendment of the TRIPS Agreement developed patent protection afforded to pharmaceuticals products? In answering this question, the researcher will consider whether the current developments support the objectives of the WTO to promote and prioritise public health. Developments of the TRIPS Agreement will beconsidered, through deliberation of the Agreement before and after the implementation of the World Trade Organization, Ministerial Declaration of 14 November 2001, WTO Doc. WT/MIN (01)/DEC/1, 41 ILM 746 (2002) (hereinafter the Doha Declaration) as well as the implications the waiver request had on the access of patented pharmaceuticals. To arrive at the aim of the study, the researcher will evaluate, as a first objective, the historical development of patent protection. Furthermore, the researcher will critically examine past instances of the WTO’s involvement in patent protection with regard to the pharmaceutical industry, the Doha Declaration, and the current issues with regard to global access to COVID-19 vaccines to determine if the present stance on patent rights, on an international level, contributes to the achievement of the WTO’s public health goals in the context of the global COVID-19 pandemic. Ultimately, the study concluded that, while the WTO’s approval of the waiver of specific provisions under the TRIPS Agreement was a further affirmation of its members’ dedication to public health, the waiver has had limited success. Therefore, in subsequent pandemics other solutions will be needed.