Balancing Patent Rights and Societal Interests: Interpreting Articles 20, 7, and 8 in Light of TRIPS

8th November, 2024 - 6:18 am Categories: News & Updates Patent Act 0 Comments

The rationale for the exception will vary with purpose for which it is granted. However, in the previous article 30, it has already been explained that these justifying reasons come from numerous sources such as Articles 7 and 8(1), the Doha Declaration and GATT 1994 and TRIPS opening declarations.

Just like Article 20 does not give clear criteria on justifiable reasons, Article 30 will neither specify clear indications of what kinds of grounds would qualify as sufficient justification of conflicts with normal exploitation of a patent nor which would prejudice the interests of its legitimate interests. Article 8(1) and the wider TRIPS framework will be needed to identify such justification explanations.

Therefore, public health, nutrition, and policies essential to socioeconomic and technological advancement are all considered legitimate reasons under Article 30. The legitimacy of developmental aims is heightened by the references to socioeconomic and sustainable development in Article 8(1), TRIPS’ explicit mention of development, and the inclusion of sustainable growth in the preamble of GATT 1994 SDG 3, which strives to ensure universal access to critical medications, aligning development and public health goals, which strongly urges exceptions. Moreover, these sources help to clarify the legitimate interests of relevant third parties and who satisfies that requirement.

Australia and the Panel did not attempt to outline any specific criteria in determining ‘sufficient support.’ They did however agree that a logical relationship alone is not sufficient; the measure does not necessarily have to be absolutely required.

The process of balancing effectively amounts to a decision as to whether the policy rationales of creating a patent exception discussed under aspect (2) outweigh or at least equalise the level of conflict between the patent’s usual exploitation and the damage caused to the patent owner’s legitimate interests-discussed under aspect (1). This balancing act is best captured in the Panel’s finding that reducing tobacco consumption for public health purposes is an important objective. They argued that the measures, though having a significant effect on trademark use, would significantly contribute to this end. This indicates that even though the measures may have significant impacts, the benefits of imposing patent exclusions toward sound objectives of public health empirically foreseen to or substantially advance toward those objectives outweigh both the controversy and prejudice established.

This construction of Article 30 promotes balanced review as weighing and balancing competing interests, expanding the range of permitted exceptions. While the Australia-TPP precedents increase state confidence to enact exceptions for very important public policy objectives, the details of patent exception implementation are still undefined. Sophisticated strategy suitable to each state, their level of development, and the goals of the public interest have to be taken into consideration. This article suggests the addition of a future stockpiling exception to preparation for pandemics and epidemics with a view to more easily attain SDG 3, in an attempt to encourage countries to explore further exceptions .

CONCLUSION

This article tries to interpret Article 30 so that developing countries are more confident about their capacity to provide patent exceptions that will suit best their development goals, particularly in public health and medicine access which aligns with SDG 3. The above-stated reading of this article is based on a number of WTO legal sources including as the Doha Declaration, the Australia-TPP (Nos. 1 and No. 2), and the VCLT all confirming the critical significance of Articles 7 and 8 in interpretation of the voluminous language in Article 30. To secure an accord that will best suit the welfare of patent holders and the public interest—particularly in terms of mollifying negative impacts of patents within the developing nations—the paper suggests interpreting Article 30 with the term “unreasonably” as its core.

This approach, based on a weighing and balancing test, broadens the spectrum of acceptable waivers that are oriented towards critical public interest objectives. Further, Australia-TPP testifies that interests that are articulated in Articles 7 and 8 are true public interests that are entitled for authorization of policies having an impact on intellectual property rights. These include, inter alia, health, nutrition, as well as interests that are important to social and technical development of a country. Additional, the background of Article 30, which carries with it the preambles to TRIPS and GATT 1994 both of which refer to recognition of sustainability and long term development, might be used in infer lawful society interests. It is not debatable that application of exemptions affecting patent rights towards these objectives is justified because public health, development, and sustainable development represent core values for the World Trade Organisation.

Most certainly, the exceptions under the guise of SDG 3 are perfectly acceptable in the light of the fact that it is in consonance with the goals and objectives that the nations should do to achieve universal access to essential medicines pertaining to public health and development as stipulated in SDG 3. In this context, the paper argues for a stockpiling exception for pandemic and epidemic preparation aimed at making essential patented drugs available to impoverished nations to fulfill SDG 3. The hope is that developing nations will incorporate more significant exceptions into their national legislation. According to that, poor countries should feel more confident about the use of patent exceptions as a significant instrument of adjusting laws on intellectual property, and, thereby, reduce negative repercussions on social development and access to necessary medications.

Author: Sufian Ahmed, in case of any queries please contact/write back to us via email to chhavi@khuranaandkhurana.com or at  Khurana & Khurana, Advocates and IP Attorney.

REFERENCES

1. Christophe Geiger and Luc Desaunettes-Barbero, ‘The Revitalisation of the Object and Purpose of the TRIPS Agreement: The Plain Packaging Reports and the Awakening of the TRIPS Flexibility Clauses’ (Research Paper 2020-01, Centre for International Intellectual Property Studies, 2020) 38.
2. Andrew Mitchell and Theodore Samlidis, ‘The WTO Tobacco Plain Packaging Disputes: A Prelude to Public Health Measures in International Economic Law’ [2021] ICLQ 1, p 13.