Paper Underscores Limitations of TRIPS Flexibilities, Concern with UNHLP Report

Last fall, the U.N. High Level Panel (UNHLP) on Access to Medicines released a report that claimed to propose ways to increase access to medicines. However, the UNHLP report makes several damaging recommendations aimed directly at laws and policies that protect intellectual property and promote access. These recommendations not only threaten future innovation worldwide, but also stray from the intended interpretation of the Agreement—a sentiment underscored in a recently published paper by Solovy and Krishnamurthy.

The paper responds to the UNHLP report by examining flexibilities under the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), and their limitations; the exploitation of certain TRIPS Agreement flexibilities is promoted by the UNHLP report as a “solution” for increasing access to medicines.

The paper’s findings indicate that many patent-related TRIPS Agreement flexibilities in the UNHLP report are “derived only from an improper interpretation of the Agreement.” Particularly problematic, according to the authors, is the UNHLP report’s proposition that Members take advantage of the “freedom to define for themselves” the substantive requirements of patentability—a recommendation that is largely inconsistent with the widely accepted interpretation of the treaty.

If the international community allows the UNHLP report to serve as the basis of future work, important IP protections will be eroded, posing threats to future innovation and access. Solovy and Krishnamurthy’s findings further emphasize this point, and it’s critical that global leaders carefully consider this work as they make decisions surrounding international IP rights and innovation.