Intellectual Property in the WTO Volume I
Edited by Carlos M. Correa
Chapter 17: Compulsory Licensing of Patented Pharmaceutical Inventions: Evaluating the Options
Jerome H. Reichman* 1. How compulsory licensing survived the TRIPS Agreement of 1994 Few topics in international intellectual property law have been as controversial in recent years as the one we are about to examine. In the 1980s and early 1990s, a Diplomatic Conference attempted to revise the Paris Convention of 1883, the oldest international convention providing some protection for patented inventions outside of the domestic laws.1 Those efforts broke down, largely because developed and developing countries could not agree on the powers that governments should retain to issue compulsory licenses or on the grounds for which these powers could be exercised.2 The failure of this Conference, held under the auspices of the World Intellectual Property Organization (WIPO), persuaded the technology-exporting countries to link future negotiations concerning international intellectual property protection to the Multilateral Trade Negotiations, known as the Uruguay Round, which got under way in 1986.3 The end result was Annex IC of the Agreement Establishing the * © J.H. Reichman 2009. An earlier version of this article appeared in 37 J. Law, Medicine and Ethics 247 (2009). The author wishes to thank Professor Kevin Outterson for his invaluable suggestions and insights. He also gratefully acknowledges the support of the National Human Genome Research Institute and the Department of Energy under Grant No. 5P50 G003391-02. 1 Paris Convention for the Protection of Industrial Property, Mar. 20, 1883, as revised at Stockholm (1967), 21 UST 1583, 828 UNTS 305 [hereinafter Paris Convention]. 2 See, e.g., Jerome H. Reichman with Catherine Hasenzahl, Non-Voluntary...
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