International pressure by industrialized countries often occurs through bilateral dialogues, capacity-building programs, and bilateral and macro-regional trade agreements that seek to limit flexible TRIPS interpretations and increase existing standards of protection in time, scope, and enforceability. Patents give protection to technological inventions and design rights to the appearance of mass-produced goods for limited time periods. Patents are granted for inventiveness and for being different from the works done previously. Thus, I will focus my answer on patented pharmaceuticals to start with.
As the TRIPS agreement which aims to harmonize national intellectual property rights, some would state that developing countries and Less Developed Countries (LDC’s) via-a-vis developed countries are not on the same level playing field and therefore the LDC’s may find it more challenging to adapt to the growing demands of enforcing and more importantly protecting IPR’s.
Hence, additional flexibilities are granted to developing nations and LDC’s for the implementation of TRIPS. WIPO has identified four clusters[1]:
Flexibilities as to the method of implementing TRIPS obligations;
Flexibilities as to substantive standards of protection;
Flexibilities as to mechanisms of enforcement; and
Flexibilities as to areas not covered by the TRIPS Agreement.
IP rights are generally negative rights, in other words those rights aim to stop the other people from pursuing actions without the consent of the right owner. There are also positive rights such as patent grants. [2] Patents give protection to technological inventions and design rights to the appearance of mass-produced goods for limited time periods. Patents are granted for inventiveness and for being different from the works done previously. Thus, I will focus my answer on patented pharmaceuticals to start with.
Taking the example of patents,[3] emerging and developing countries face dilemmas when tailoring their approaches to TRIPS implementation. On the one hand are the costs of having a stronger IP regime – some relate to administrative costs stemming from building patent offices, providing for specialized personnel, and proper patent application procedures; others relate to the effects of stronger IP rights, such as the already mentioned costs of pharmaceutical patents for public health programs. As a result, developing and emerging countries feel substantial domestic and international pressure to adopt measures and institutions of strong IP protection. (More mentioned in Answer Three of this Exam)
Domestic pressure branches from financial segments that are highly innovative and seek to capture the charges that ascend from transitory monopolies granted by patents. Other sources of domestic pressure can come from multinational corporations, mostly from developed countries, seeking to protect the economic gains derived from their technological lead. Generally, it may be hard for most developing countries to resist maximalist IP policies. Large emerging economies like Brazil India and China have been in a better position to do so for a number of reasons relating to possessing larger market power and resources for capacity-building. However, this is not the case for countries that do not have such a large market power.
In addition, in order to take advantage of TRIPS flexibilities such as compulsory licensing, (also, mentioned in depth in answer to question 3, below) developing countries need to be able to produce pharmaceutical drug themselves, domestically, however few developing countries have these capacities, which explains why most of them have followed and supported the flexibilities practiced by large emerging economies with regard to the TRIPS agreement through compulsory licensing.
India was one of the most active WTO members advocating for additional exceptions and limitations to patent protection, especially in the process that led to the 2001 Doha Declaration on the TRIPS Agreement and Public Health, the 2003 WTO decision on public health, and the 2005 amendments to TRIPS.
For example, India takes a large stance in IP disputes through its domestic practices and has has tested the limits of the flexibilities included in the agreement
Another challenge for LDC’s or developing countries is their claim to misappropriation of traditional knowledge, genetic resources, and traditional plant varieties. India has challenged foreign companies’ patents on the grounds that they may be based on pre-existing traditional knowledge and biological material to pre-empt foreign patenting on the grounds of lack of novelty and ensure that the TRIPS provisions on the protection of plant varieties do not affect farmers’ rights to keep and trade seeds (so-called farmers’ rights as opposed to breeders’ rights).
LDC’s interpret TRIPS and shape IP rules by promoting limits to pharmaceutical patents, which can be seen a plus-point for them through a utilitarian, public health standpoint, in my opinion.
For example, the threat posed by a full TRIPS implementation led to Brazil’s HIV/AIDS program and India’s vast generics industry mobilized domestic and international stakeholders in seeking a more flexible interpretation of IP norms.
Some other challenges proclaimed to Developing Countries due can be seen in the aftermath of TRIPS coming into fill fledged force, such as;
Lack of patent protection for pharmaceutical products and processes have led to production of cheap drugs and question poses if these drugs are effective, credible,
Limited patent protection for fertilizers and pesticides have led to cheaper food and question posed is whether this is healthy..
Lack of copyright protection for informational products has not fostered education and technology transfers;
No offsetting protection for traditional knowledge (used as one exception for LDC’s to dodge strict patent protection laws as well, as encapsulated under the TRIPS agreement.))
To sum up, the large burden of losses from higher prices; minimal stimulation of local innovation has not been in favour of LDC’s and developing countries. [4]
[1] WIPO Report https://www.wipo.int/ip-development/en/policy/flexibilities.html [2] According to Art.2 para. viii , WIPO Convention (1967) [3] Geiger & Desaunettes-Barbero, The Revitalisation of the Object and Purpose of the TRIPS Agreement (2020) [4] Abbot (1989); Gana (1996); Oddi (1996); Hamilton (1996)
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