Intellectual Property Rights Of Pharmaceutical Products And Medical Services In The Trilateral View Of WHO, WTO And WIPO

The Secretariats of the World Trade Organization (WTO), World HealthOrganization (WHO), and World Intellectual Property Organization (WIPO) releaseda joint publication entitled ‘Promoting Access to Medical Technologies andInnovation: Intersections between public health, intellectual property and trade’(the‘Trilateral Study’), in February2013. It is an effort to present a consolidatedperspective on significant issues involving the relationship between public health, IPand trade subject matter, including how international rules addressing this subjectmatter may be interpreted, and how national and regional approaches may beimplemented. Three secretariats have jointly acknowledged the extent and depth ofthe flexibilities express and inherent in the international rules on which WHO, WIPO,and WTO members have agreed. They have supported that substantial discretionresides in the hands of sovereign states to manage their public health and IP affairs.The Trilateral Study provides multilateral institutional support for differentiatedapproaches to addressing public health concerns.IP systems operate by providing limited rights to exclude certain definedthird-party use of protected material. Original medicine research company can takeconsiderable economic benefits through innovation，so does the public health. But onthe other hand, IP systems of the exclusive power suppresses competition even furtherhamper innovation but also not conducive to the medicine access. In the trilateralview, IP systems should balance the interests of the holder of the intellectual propertyrights and the interests of the public, to promotes overall public welfare. So, medicineIP systems should be limited in territoriality, period of protection, subject matter andso on.Because the pharmaceutical is the key to public health security, original researchcompany must involves considerable efforts to generate of the test data in clinic trial.Protection of the test data submitted for regulatory approval almost as important asmedicine patent protection. Once test data leaked, generic medicine manufacturersmay according to these key data reproduce the new pharmaceutical, without large investment involves in generating test data in clinic trial, so generic medicinemanufacturers may gain unfair competitive advantage. Original research companyneeds at a higher price to recover cost to promote the innovation of the medicine，generic medicine manufacturers can provide the same pharmaceutical to promotemedicine access. This paper explores preliminarily determine the scope of data andprotection period，and put forward the mechanism of linkage, this is a progress.In this paper, in terms of medicine trademark protection, first clarify the conceptof trademark and international nonproprietary names, and explore the effects of theprocess and the international nonproprietary names. Ensuring that trademarks areclearly distinguished from INNs is important for the accurate identification ofproducts, and thus for the safety of patients. It is also important to keep INNs in thepublic domain and to avoid granting private property rights for them. Inaccurate ormisleading labelling can also be considered a form of unfair competition. It is coveredby Article10bis of the Paris Convention, as well as by consumer protection laws andsimilar provisions in many countries, and is designed to safeguard against deceptiveor misleading labelling. In this paper, according to the Trilateral Study, genericproducers are free to use the information provided in an insert, since copyright doesnot extend to the information as such, just the way it is expressed. The TrilateralStudy does not break new ground in the relationship between public health,innovation, access, and IP rights. It covers a road that has been built fairlypainstakingly by persons. But, the Trilateral Study does put a layer of solid pavementon the road so that it may be more easily traversed by national governments seekingto adopt differentiated approaches to the relationship between public health and IP.The wide-ranging discussion of the various flexibilities express and inherent in theTRIPS Agreement and other international instruments is a genie not easily put back inthe bottle.