Outterson, Kevin --- "Disease-based Limitations on Compulsory Licenses Under Articles 31 and 31bis" [2010] ELECD 460; in Correa, M. Carlos (ed), "Research Handbook on the Protection of Intellectual Property under WTO Rules" (Edward Elgar Publishing, 2010)

Book Title: Research Handbook on the Protection of Intellectual Property under WTO Rules

Editor(s): Correa, M. Carlos

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781847209047

Section: Chapter 19

Section Title: Disease-based Limitations on Compulsory Licenses Under Articles 31 and 31bis

Author(s): Outterson, Kevin

Number of pages: 25

Extract:

19 Disease-based limitations on compulsory
licenses under Articles 31 and 31bis
Kevin Outterson*


1. Disease-based limitations on compulsory licenses in TRIPS Article 31
Article 31 of the Agreement on Trade-related Aspects of Intellectual
Property Rights (TRIPS) permits a World Trade Organization (WTO)
Member country to issue a compulsory license of a patent under certain
conditions.1 Compulsory licenses are not limited to any category of
diseases. The text of Article 31 never mentions any specific diseases, a
deliberate decision by the negotiating group to avoid any disease-based
limitation.2
This provision has been misunderstood ­ perhaps deliberately so ­ in
the pages of the Wall Street Journal and the Financial Times to imply
that Article 31 only applies to national public health emergencies like
HIV/AIDS or only to the least-developed countries. When Thailand (a
middle-income country) attempted to use TRIPS flexibilities guaranteed
and encouraged by the Doha Declaration on drugs for cancer and heart
disease, a backlash ensued from the conservative media, pharmaceutical
manufacturers, patent blogs, and the governments of the United States
and the European Union.3 A Wall Street Journal editorial attacked the


* This chapter is a modified and expanded version of Should Access to
Medicines And TRIPS Flexibilities Be Limited To Specific Diseases? 34 AM.
J. L. & MED. 279 (2008), used by permission. An earlier version of this project was
submitted to the WHO IGWG in 2007: A Request for Clarification Concerning
the Proper Scope of the IGWG's Work to Improve ...