A Public Health Imperative: The Need for Meaningful Change in the Trans-Pacific Partnership’s Intellectual Property Chapter

Abstract

In order to address the immense public health inequity in trade and patent law practices, the World Trade Organization (WTO) administered the Agreement on Trade-Related Aspects of Intellectual Property Rights (widely known as TRIPS). The TRIPS Agreement employs various provisions to ensure public health needs are addressed through international trade; these provisions are referred to as “flexibilities.” The past two decades have seen an increasing number of developing nations successfully utilize the flexibilities provided by TRIPS, which aim to lower costs and increase access to medicine by facilitating the importation of generic formulas. While TRIPS has made progress by bringing public health needs on par with global patent rights, many countries have not yet amended their laws to incorporate full TRIPS flexibilities. An increasing number of bilateral and multilateral free trade agreements include intellectual property protections that greatly exceed the minimum intellectual property standards of TRIPS, thus hindering the use of such flexibilities. The advent of the TPP, a proposed trade agreement between twelve countries including the United States, potentially poses the most aggressive pharmaceutical intellectual property provisions to date. Part I of this Note will review the development of the TPP and its intellectual property provisions as well as the history of trade and medicine, particularly focusing on the restrictions of the TRIPS flexibilities. Part II will specifically discuss how the TPP’s intellectual property provisions will adversely impact global access to affordable medicines and a partner nation’s ability to utilize existing TRIPS flexibilities. Part II will also include recommendations to keep the TPP consistent with TRIPS in order to balance patent rights for the pharmaceutical industry with broader public health and bioethical goals.