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TRIPS and its Worldwide Impact

Khurana and Khurana, Advocates and IP Attorneys India


Overview

When patent is talked about for medicinal purposes there has always been a two sided stand. one is the capitalist thought which thinks that if an invention has been done which requires Years of study, research and development - then the inventor must be duly recognised and paid. for the hard-work, price of such medicines are usually high like arthritis drug HUMIRA developed by AbbVie Inc. the best-selling drug by prescription with more than $12 billion in the U.S. sales per year. From developing it was granted patent from 2002-2016 when its patent rights expired. However, in the three years leading up to the patent’s expiration, the corporation applied for and received more than 75 patents to extend its monopoly until 2034. Eculizumab, which is used to cure paroxysmal nocturnal haemoglobinuria and atypical haemolytic uraemic syndrome, costs approximately $400 000 per patient annually in the United States. By 2022, it is estimated to create yearly revenues of over $5 billion.4 Since demand for lifesaving medicines is stable, the pharmaceutical industry has the ability to misuse its market position which again develops a monopoly in the market, the rich who can afford the drugs, creating social inequality. This is where the other side of argument starts which argues that giving patent to vital drugs grants a monopoly resulting in high prices which means the economically poor cannot afford the drug. Many have argued that Trade Related Aspects of Intellectual Property Rights (TRIPS) and the Doha Declaration6 does not offer an escape clause for the poorest countries.

 

INTRODUCTION

World Intellectual Property Organisation (WIPO) defines, “A patent is an exclusive right awarded for an invention, which is a product or a process that provides, in general, a new way of doing something or a new technical solution to a problem."1 Patent grants an exclusive right to safeguard an invention from others who seek to monetarily utilize it in numerous ways, including: importing, distributing or selling it without the permission of the patent holder2. In India, this right is conferred by the government and it is for a period of 20 years3 from the date of publication, after the patent has expired the invention falls into public domain and is free to be used by anyone. However, this grant of exclusive right to use of a patent is not absolute and under certain conditions and circumstances, third parties could be allowed to use a patent by grant of a Compulsory license.

 

One isn’t awarded a patent for an idea or principle in itself but a product or method of manufacturing a product or article using the idea. The grant of a patent is territorial in scope. A patent granted in one country cannot be enforced in another unless the invention in concern is also protected by a patent in that country.

 

When patent is talked about for medicinal purposes there has always been a two sided stand. one is the capitalist thought which thinks that if an invention has been done which requires Years of study, research and development - then the inventor must be duly recognised and paid. for the hard-work, price of such medicines are usually high like arthritis drug HUMIRA developed by AbbVie Inc. the best-selling drug by prescription with more than $12 billion in the U.S. sales per year. From developing it was granted patent from 2002-2016 when its patent rights expired. However, in the three years leading up to the patent’s expiration, the corporation applied for and received more than 75 patents to extend its monopoly until 2034. Eculizumab, which is used to cure paroxysmal nocturnal haemoglobinuria and atypical haemolytic uraemic syndrome, costs approximately $400 000 per patient annually in the United States. By 2022, it is estimated to create yearly revenues of over $5 billion. Since demand for lifesaving medicines is stable, the pharmaceutical industry has the ability to misuse its market position which again develops a monopoly in the market, the rich who can afford the drugs, creating social inequality. This is where the other side of argument starts which argues that giving patent to vital drugs grants a monopoly resulting in high prices which means the economically poor cannot afford the drug. Many have argued that Trade Related Aspects of Intellectual Property Rights (TRIPS) and the Doha Declaration does not offer an escape clause for the poorest countries.

 

The TRIPS agreement and the Doha Declaration’s solution for improving vital drug supply has two major advantages over alternative mechanisms: it is already enshrined in international law, and it has the political support of the Sustainable Development Goal Declaration.

 

The TRIPS Agreement covers all kinds of intellectual property in general and aspires to Provide complementary and higher levels of protection as well as operative enforcement on a national and international level. It also discusses the applicability of broad GATT principles as well as provisions in global IP treaties. It also sets up standards for Intellectual Property Rights scope, usage, readiness, enforcement, acquisition, and maintenance.

 

Trips Agreement

In 1995 TRIPS Agreement came into being which established minimum necessary standards for Intellectual Property Laws in WTO member countries.8 What TRIPS Agreement did is it set out a uniform law governing all the nations party to it prior to this granting patent was based upon whims and fancies of the government while some granted and some not this created an; imbalance where a inventor wasn’t able to get the due for invention. All WTO member states were required to establish a minimum level of intellectual property rights under the TRIPS agreement. It did not, however, establish a global system. Instead, it established worldwide standards for national systems of intellectual property protection. Each WTO member state is in charge of creating its system, but it can work with other people to Develop regional systems.

 

Prior TRIPS Agreement in pharmaceutical cases if a company had been granted a patent on a drug it has developed it got the right to prevent production, sales and import of the same generic values in the country but was bounded by territorial restrictions since it cannot make the same in other countries as medicine of same generic value. This changed when TRIPS came into effect as now some similar clauses can be found in all partner countries to WTO subject to regional laws.

 

 

Khurana and Khurana, Advocates and IP Attorneys



About the Firm

Khurana and Khurana, Advocates and IP Attorneys

AddressD-45, UPSIDC, Site IV, Kasna Road, Greater Noida - 201308, National Capital Region, India
Tel91-120-313 2513, 91-120-350 5740
Fax91-120-4516201
Contact PersonTarun Khurana
Emailinfo@khuranaandkhurana.com
Linkwww.khuranaandkhurana.com


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