Patents in TRIPS-Plus Provisions and the Approaches to Interpretation of Free Trade Agreements and TRIPS: Do They Affect Public Health?

摘要

The proliferation of regional or bilateral Free Trade Agreements (FTAs) has seen the adoption of an increasing number of TRIPS-plus measures to provide heightened levels of intellectual property protection. One implication is that protection of public health may be affected if access to medicines is restricted by the relevant patent provisions in these TRIPS-plus provisions. The interpretation approach adopted by WTO has led to an understanding of TRIPS in a manner supportive to public health. Many FTAs have established their own interpretation approach that will also impact on issues concerning access to medicines and public health. The patent provisions in the TRIPS-plus provisions seem to cause conflict between the protection of public health in TRIPS and that in TRIPS-plus regimes if higher levels of patent protection are adopted in FTAs. This article analyses the relationship between the approaches to interpretation of TRIPS and TRIPS-plus and discusses the impact of this interpretive relationship. This article examines the object and purpose of TRIPS and its subsequent developments for the interpretation of TRIPS-plus. This article then discusses the justification of heightened patent protection in the TRIPS-plus and the justification narrative upon the interpretation of the patent provisions in FTAs. This article then concludes that the interpretation of the patent protection provisions in the TRIPS-plus should be conducted with reference to TRIPS and its subsequent developments in order to harmonize TRIPS and TRIPS-plus in the context of public health protection.