Compulsory Licensing under TRIPS: How Far it Addresses Public Health Concerns in Developing Nations

Abstract

While the TRIPS Agreement provides for the patenting of drugs, it also provides for compulsory licensing as a mechanism to check the abuse of patent rights that might flow from such a rigid patent regime. However, it was only after the subsequent Doha Declaration that the developing nations could use this provision of compulsory licensing to access drugs from the developed world. This article examines international law on compulsory licensing in patents, the extent to which it restricts the scope of developing countries in taking advantage of technology in the developed world, the space it leaves open for them to further promotion of public health and the manner in which it has been used in some developing countries. It argues that although there are a number of obstacles placed through the new patent law regime mandated by TRIPS, there is still immense scope left for the developing countries to exploit. Careful planning and policy making can enable an effective balancing of the conflicting interests of protecting patent rights and making essential drugs accessible to all.