Compulsory Licensing and Public Health
| Author | Anselm Kamperman Sanders |
| Published date | 01 December 2004 |
| DOI | 10.1177/1023263X0401100401 |
| Date | 01 December 2004 |
| Subject Matter | Editorial |
Editorial
11 MJ 4 (2004) 337
Compulsory Licensing and Public Health1
Compulsory licensing of patented pharmaceuticals has been a controversial issue for quite
some time. The AIDS drugs war was fought in public in the global media as much as
through WTO lobbying by NGO’s and the Governments of South Africa and Brazil on
the one side, and major drugs companies and the industrialized nations on the other. It
has made the general public aware that drugs companies prefer to target the backpacker
generation rather than developing nations when it comes to making available much-
needed medication for diseases such as encephalitis, malaria and tuberculosis. Although
less than 5% of the drugs on the WHO Essential Drugs List2 are patented3 and patent
protection in many developing countries is less stringent than TRIPS otherwise
requires,4 the drugs are still not available. The Doha WTO Ministerial Declaration on
TRIPS and Public Health of 14 November 2001 (WT/MIN(01)/DEC/2) was meant to
increase access to essential drugs by allowing generic drugs manufacturers to produce
medicine under a compulsory licence on the premise that this would increase production
and lower prices. At the time it was recognised that the provisions of the TRIPS
Agreement stood in the way of production and sale under compulsory licence of patented
1. See also A. Kamperman Sanders, ‘Patents – Antitrust, Compulsory Licensing and Research
Exceptions’, in Heath/Kamperman Sanders (eds.), Industrial Property in the Bio-Medical Age (Kluwer
Law International, 2003), 163-184.
2. See edl/procedures.shtml> for the selection criteria of
essential medicines, which do not include the patent status of the drug in question, but does give
consideration to cost, thus potentially excluding therapeutically important but expensive drugs; for the
list see http://mednet3.who.int/eml/eml_intro.asp. See also Velásquez, ‘Phamaceutical Patents and
Accessibility to Drugs’, Revue Internationale de Droit Economique Special Edition: Pharmaceutical
Patents, Innovations and Public Health (2001), 41 and Dumoulin, ‘Patents and the Price of Drugs’,
Revue Internationale de Droit Economique Special Edition: Pharmaceutical Patents, Innovations and
Public Health (2001), 49.
3. IFPMA Press Release, Geneva, 20 December 2001, available at .
4. The Doha WTO Ministerial Declaration on TRIPS and Public Health of 14 November 2001
(WT/MIN(01)/DEC/2) reiterates that the least developed members are exempted from implementing,
employing and enforcing pharmaceutical product and test data protection and may refrain from
granting exclusive marketing protection during the period patent protection is not provided until 1
January 2016, see .
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