Over at Patent Docs, Kevin Noonan defends the patent system. Most of the post is thoughtful. I’ll only comment on his analysis of the WTO TRIPS agreement, which is filled with errors. This is important because millions of people worldwide cannot afford life saving treatments due to the high cost of patented drugs. From Noonan’s blog post:
… First, while membership in the WTO was immediate, requirements to change an individual country’s patent laws were delayed up to six years after signing. Next, the Doha declaration was enacted by the WTO, which permitted member countries to impose compulsory licenses or otherwise ignore pharmaceutical patent rights for medical emergencies and other reasons, which reasons have expanded to include almost anything since the declaration’s enactment. This resulted in a trend in Brazil, India, South Africa, and other countries to impose such licenses, or to demand local “working” of patents, or otherwise reduce patent protection in these countries, until today the situation is pretty much the same as it was before TRIPS was enacted.
1. Compulsory licenses (Art. 31) and the ten-year phase in for least-developed countries and various phase-ins for developing countries (Art. 61) were part of the original WTO TRIPS deal, not a result of Doha. Brazil and South Africa phased in early. India is fully compliant. The only countries that are not fully phased in as of today are the poorest countries on the planet, places where the drug companies rarely patent their drugs anyway.
2. Worldwide, only one compulsory license has been granted under the Art. 31 bis exception to 31(f). In 2007, Apotex was permitted to export 260,000 packs of TriAvir, an HIV/AIDS medication, to Rwanda. The process was so difficult that no one has succeeded since then. Other compulsory licenses under Art. 31 have been rare and are always met with scorn by the US government. While the US is one of the most active litigants in the WTO, we have not challenged India, Brazil or Thailand in the WTO dispute resolution process on the issue of TRIPS compulsory licenses.
3. TRIPS had real impact on countries like Brazil and India’s patent regimes. They do not “ignore” patents. While Noonan might not like the patent flexibilities guaranteed by TRIPS, he should not pretend they don’t exist.
4. Noonan is probably alone in thinking that “today the situation is pretty much the same as it was before TRIPS was enacted.”