Under The Trips Agreement, Compulsory Licensing System Research

Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) has regulated that all WTO members shall give pharmaceuticals patent protection, and it also has established that a compulsory licensing system to eliminate the adverse effects that pharmaceutical protection may induce. However, patent protection of pharmaceuticals has made prices of essential medicines increased rapidly. At the same time, AIDS and other infectious diseases prevailed in the developing countries and least developed countries. The compulsory licensing system under TRIPS Agreement has been challenged by this situation. South Africa, Brazil had faced trade sanctions when they used this system, and the least developed countries which did not have medicine manufacturing power could not use the system as Article 31(f) provided that no medicine made under the compulsory licensing could export.In November 2001, WTO members concluded the Declaration on the TRIPS Agreement and Public Health, and in August 2003, the WTO general council concluded the Implementation of paragraph 6 of the Doha Declaration on the TRIPS Agreement and public health. These documents restated that TRIPS Agreement should not block the protection of public health, and medicines made under the compulsory licensing could export under certain circumstances. In December 2005, Amendment of TRIPS Agreement, adopted by the ministerial conference of WTO adopted, which was based on the previous two documents, finally amended the TRIPS Agreement. Although it has not been effective, some countries have already ratified it.This dissertation shall use historical analysis, evidence analysis and theory analysis to dig into the new compulsory licensing system of pharmaceuticals under TRIPS Agreement.This paper will firstly introduce the background of the research object and present research. The first part will prove that the pharmaceutical compulsory licensing system under TRIPS Agreement had affected the public health protection in the developing countries and least developed countries. Then, it will go deeply to the compulsory licensing system in TRIPS and discuss its new development since 2001. The next will be the introduction of recent implementing practice by WTO members. Finally, it will devote to find out how China may better use the new system.