Rethinking Trips: Adequate Remuneration for Non-Voluntary Patent Licensing
Australian National University – ANU College of Law
Journal of International Economic Law, Vol. 11, Issue 4, pp. 927-970, 2008
Driven by concerns about access to medicines, the World Trade Organization (WTO) Doha Declaration on the Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement and Public Health and ensuing negotiations to amend the TRIPS Agreement, clarified and extended the international law governing compulsory licenses and government use for pharmaceutical patents. But this process left open the question of how to determine the adequate remuneration payable when these measures are used. This article reviews this question in the light of guidance provided by the law and practice of WTO dispute settlement, and a broader legal and policy context, including the law of human rights and the law of investment. But this narrow issue also sheds light on the general character of WTO/TRIPS as a trade law regime within the broader context of international law. If the essential objective of trade law is to settle trade disputes guided by agreed standards on what constitutes a reasonable opportunity for legitimate competition, the law governing adequate remuneration for compulsory licensing shows how specific IP rules can be reconciled with trade law at the level of basic principle.
Available at SSRN.