2016-12-26 来源: 51Due教员组 类别: 更多范文
TRIPs can be said to be the most important protocol in WTO. On the surface, TRIPs helps developing countries and the least developed countries, and, in the patent transfer problem is also given time point. But in fact, the occurrence and development of last two decades that seems not toward TRIPs expected. the question of whether to expand the scope of protection and patent protection problems, compulsory licensing issues has been one of the developing and developed members debated topic, and drug problems often is the focus of this controversy.
2.0 The protection of drug patents
For the controversial protection of drug patents, because of the different positions held by developed countries and developing countries, as well as different reason held in these positions, TRIPs will have to consider the interests of all parties, it choose a balance of interests. Finally, TRIPs only for patent protection measures to restrict certain to balance the interests of all parties.
2.1 Exclusive sales rights system
Through the exclusive marketing rights system in the TRIPs protocol , developed countries give a transitional period for developing countries and the least developed countries. According to the provisions of the system, not for pharmaceuticals and agricultural chemicals patent protection of the state, shall be to provide a set of administrative procedures, to submit to the patent application was accepted, as given patent protection to review, so as not to lose its novelty, wait until after a transition period before the grant of the patent.
2.2 The compulsory license system
In order to prevent the abuse of patent right, TRIPs also provides for compulsory licensing system, in certain circumstances, the state may not agree with the permission of the patentee, for the public interest is the ability of the enterprise authorized the production of patented products, supply the needs of the market. In the compulsory licensing system, because the price is not the patent monopoly, licensee shall pay reasonable costs to the patentee, the public is expected to be cheap patent products.
3.0 The case and its enlightenment
Although generally speaking, TRIPs made a prominent contribution to the protection of the intellectual property rights, but behind it, in fact, it is impossible to ignore the huge interest group.
3.1 South Africa's struggle
South Africa is one of the most serious countries about Aids in the world. USA government in its domestic drug manufacturers lobbying asked the South African government cancel these policies, and threatens to impose trade sanctions, the EU later joined the America to put pressure on South Africa.
3.2 Trade disputes between America and Brazil
Brazil is one of the most serious countries about Aids in the world also, in order to deal with the growing threat of AIDS, in the early ninety century, the Brazil government launched NSAP plan. To comply with the TRIPs agreement obligations, Brazil established new industrial property law.
3.3 The anthrax crisis
After “9.11” in America, the terrorists mailed the anthrax caused many deaths, in the America and neighboring Canada, the demand which anthrax which on the prevention and treatment of anthrax corresponding drug were sharply. The German pharmaceutical company Bayer production of "cipro" is American market only was approved to treat the virus drugs. Especially facing developing countries requires the reform of TRIPs in accordance with their level of intellectual property protection in voice, America which master the most pharmaceutical patent become cautious to from their own interests.
3.4 Case review
Analysis of the above three cases, to sum up they have the following characteristics: First, the focus of three cases were concentrated in the pharmaceutical patent right and public health aspects, namely the countries concerned in three cases are in order to solve the public health crisis and take measures to carry out certain restrictions on drug patent proprietary rights, it caused the conflict between pharmaceutical patent right and public health. Second, in the cause of dispute, they have violated the TRIPs. Third, the background is almost always exist in public health crisiscountries concerned.
In fact, whether it is the contradiction between drug patents and public interests, or the gap between developed countries and developing countries contradictions, the core issue is whether the distribution of rights and obligations of the equilibrium.