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Amici Curiae – the Key to Promoting Human Rights
Trips-Plus Regulations of Pharmaceuticals Patents-Invention
or Innovation?
Aneta Bernardová – PF UK
I. Introduction
One of the core interests of governments around the world is the protection of
public health.
1
Trade liberalisation, which leads to cheaper and more accessible drugs,
might be a good way to protect public health;
2
this goal is even the very first objec-
tive in the preamble of the Agreement establishing the World Trade Organisation.
3
However, the actual rules of international trade often hurt, rather than promote public
interests.
The accessibility of medicines and protection of public health is regulated by protec-
tion of intellectual property (IP) rights. These rights are regulated on national, bilater-
al, regional and multilateral levels.
4
The multinational level of protection is represented
in the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).
However, the commitments under TRIPS are often extended in regional trade agree-
ments (RTAs).
5
The aim of intellectual property regulations is to reach balance between effective
protection of the pharmaceutical industry’s intellectual property rights and the ability
to provide affordable generic drugs for everyone.
The intellectual property protection of pharmaceuticals is concerned mainly with
patents. The patent is a set of rights granted to an inventor
6
of a product or a process
that provides a new way of doing something, or offers a new technical solution to
a problem.
7
This right is awarded for a novel invention which entails an inventive step
and has industrial applicability.
8
The requirement of “industrial applicability” shows
1
Edwin Cameron, “Patents and Public Health: Principle, politics and paradox” in David Vaver, eds,
Intellectual Property Rights: Critical Concepts in Law IV
(Oxon: Routledge 2006) at 437 [Cameron].
2
Peter Van den Bossche & Werner Zdouc,
The Law and Policy of The World Trade Organization, 3
rd
ed
(New York: Cambridge University Press, 2013) [Van den Bossche] at 544.
3
WTO,
Marrakesh Agreement Establishing the World Trade Organization
, 1994 online
<https://www.wto.
org/english/docs_e/legal_e/04-wto_e.htm> at preamble.
4
AndrewT. Guzman, Sykes, AlanO., eds,
Research Handbook in International Economic Law
(Cheltenham,
Northampton: Edward Elgar, 2007) at 444 [Guzman].
5
David Gantz,
Regional Trade Agreements: Law Policy and Practice
(Carolina Academic Press, 2008) at 62
[Gantz].
6
Guzman, supra note 4.
7
“What is a patent?” WIPO online
<http://www.wipo.int/export/sites/www/multimedia/en/public_ou-treach/multimedia-products/products/IP-tour/data/content4.swf>.
8
Baskaran Balasingham, “Trade in Pharmaceuticals under TRIPS” (2011) 11 U.C. Dublin L. Rev. 1
[Balasingham].