(i) Developing countries generally had until 1 January 2000 to implement the provisions of the TRIPS agreement, including process and product patent protection obligations. With regard to pharmaceutical patents, developing countries that did not grant such protection on 1 January 2000 had an additional period of time until 1 January 2005 to introduce them. Since most WTO members in developing countries were already planning for the protection of pharmaceutical drugs, a relatively small number of countries were affected (2); The agreement allows limited exceptions to members, provided that these exceptions do not unreasonably conflict with the normal operation of the patent and do not unreasonably affect the legitimate interests of the patent holder, taking into account the legitimate interests of third parties. For example, many countries allow third parties to use a patented invention for research purposes, the purpose of which is to better understand invention as a basis for the development of science and technology. The WTO panel in Canada Patent Protection for Pharmaceutical Products decided that this provision, which allowed for limited exceptions, included a provision in Canadian law authorizing the use of patented products by generic drugs without authorization and before the patent expired, in order to obtain marketing authorization by health authorities for the marketing of their generic version as soon as the patent expires. (This provision is sometimes referred to as a regulatory exception or Bolar provision.) The panel`s report was adopted by the WTO`s dispute resolution body on 7 April 2000; The World Trade Organization agreement on trade-related aspects of intellectual property rights (members) requires the protection of pharmaceutical patents in all Member States. Thanks to this patent protection, pharmaceutical patent holders have a significant monopoly and can control the price of the drug. The right to health as a fundamental human right implies access to medicine as an essential element and requires parties to human rights treaties to respect, protect and fulfill the law. If patent holders raise drug prices, it will have an impact on access to medicines. Therefore, the protection of pharmaceutical patents under the TRIPS agreement is potentially contrary to the right to health.
This article analyzes the link between the TRIPS agreement and the right to health using international instruments for interpreting the treaty. It examines how TRIPS regulations and, ultimately, the entire WTO system are linked to the right to health. It also examines the specific provisions of the TRIPS AGREEMENT to determine the extent to which the TRIPS regime relates to the right to health. The ON TRIPS agreement provides that the available term of protection may not exceed 20 years at the earliest after the date of filing the patent application. It should be noted that the issue of extending the duration of patents to compensate for regulatory delays in the marketing of new drugs was raised in the Uruguay Round negotiations, but that the ON TRIPS agreement contains no obligation to introduce such a system. (1) Widespread criticism of the TRIPS agreement and its impact on AIDS treatment led the WTO to adopt a ministerial declaration on public health in November 2001 in Doha, Qatar. The Doha Declaration confirmed that the compulsory licences and parallel imports provided by the governments of Brazil, Thailand and South Africa are not contrary to the TRIPS agreement. The declaration also attempted to address a problem highlighted by the international campaign for access to medicines, namely the challenge faced by countries that lack capacity-based medicines on national territory.