Advocacy and rhetoric aside, Oxfam's report on the implementation of the "Paragraph 6 Public Health" TRIPS amendment on patent protection is pretty damning. Much of the objection is against TRIPS-plus and political pressure preventing states with generic medicine production capacity from exercising rights under the December 2005 TRIPS amendment - essentially vacating the achievement of the waiver/amendment exercise. I'm not a TRIPS expert, and wonder if there is any literature that directly addresses this, but I'll tentatively mention two legal issues that I think might rise from this.
- Is American action under Special 301 reports WTO compliant? Couldn't this "bullying" system be challenged in terms similar to the US-301 panel jurisprudence? Well, the United States could say that Special 301 isn't intended to enforce WTO rights or obligations, only IP interests more generally, so no violation of Article 23 DSU exists, in any case. But then it would have no case in attempts on its part to promote its interests through WTO dispute settlement.
- Are TRIPS-Plus obligations in RTAs WTO compliant? The question is exacerbated if the obligation in question undermines the object and purpose of a TRIPS rule, like the Paragraph 6 amendment. Yes, Article 1.1 TRIPS allows for the implementation of more extensive IP protection, but only if it doesn't contravene TRIPS. Finding a TRIPS-Plus obligation as contravening TRIPS seems like a difficult hurdle, but not insurmountable. But think a bit further: a commitment not to export in terms compliant with the para. 6 amendment is an export restraint. Could it/need it be justified under Article XXIV GATT? And to the extent that it precludes trade with a third (ie, non-RTA) party, could it not actually contravene Article XXIV (I know Article XXIV has been typified as an "exception", but I believe that doesn't mean that it isn't necessarily violable in itself)?
So this is a typically TRIPSian can of worms. Now, who should be complaining? Two possible fronts. Export-capable countries could argue against Special 301 (but not against their own TRIPS-Plus commitments). However, the same political pressure might prevent this. More importantly, medicine-hungry developing countries might argue against the TRIPS-Plus measures as well as political pressure. It's complicated, but I think that there is a case to be made (including as an alternative non-violation complaint - the para. 6 amendment precludes non-violation complaints against measures that are compliant with the amendment, not measures or agreements that cut against it).
If any TRIPS issue is worth taking to WTO dispute settlement, is it not this?
On this issue, see Columbia's cosmopolitan philosopher Thomas Pogge's remarkably L&E idea that would reward pharma companies in accordance with the actual health effect of their innovations and products.
T.
