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Florida Atlantic University Undergraduate Law Journal

College

College of Arts and Letters

Keywords

World Trade Organization (WTO), TRIPS Agreement, Trade-Related Aspects of Intellectual Property Rights, Intellectual Property Rights (IPR), Name-brand drugs, Evergreening patents, Underdeveloped countries, Pharmaceutical access, Generic drug imports, India, Southern African Development Community (SADC), Least Developed Countries (LDCs), Public health emergencies, Policy flaws, Drug patent protection, Process patents, Economic development, Medical development, International trade, Global health policy, Patent law reform, Dependency on imports

Document Type

Article

Abstract

Directed by the World Trade Organization (WTO), the Agreement on Trade-Related Aspects of Intellectual Property Right (TRIPS) of 1995 is the most comprehensive international policy on the creation, protection, definition, and transfer of International Property Rights (IPR). This policy was particularly damaging for underdeveloped countries when it came to the trade and importation of name-brand drugs, as TRIPS inherently expedited the unethical process of evergreening drug patents. As a result, the agreement forced many vulnerable regions— such as the Southern African Development Community (SADC)— to become dangerously dependent on foreign generic drug imports, predominantly from India. This paper analyzes the pharmaceutical access barriers that Least Developed Countries (LDCs) face when responding to public health emergencies, the flaws in the current policy changes undertaken by world leaders, and the best way forward in amending TRIPS. Thus, the central argument of this paper posits that, to ensure positive long-term economic and medical development in LDCs, process patents ought to no longer be protected by TRIPS, specifically by excluding Article 28.1(b) of the agreement, while simultaneously emphasizing the policy already stated in Article 66.2.

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