In November 2001, Doha, Qatar held the fourth WTO Ministerial
Conference which adopted what is known as the Doha Declaration on
the TRIPS Agreement and Public Health. Key to the Doha Declaration
was the reaffirmation that governments should interpret and
implement the Agreement on Trade-Related Aspects of Intellectual
Property Rights (TRIPS Agreement) in a manner
supportive of WTO Members' right to protect public health and
promote access to medicines.
Currently, Chapter 12 of the Patents Act 1990 (Cth) does
provides a regime where the Federal Court of Australia may grant
compulsory licences to work a patented invention, albeit in limited
circumstances. The Bill is expected to provide clarity to the
Federal Court and enable it to grant compulsory licenses to
manufacture and export patented pharmaceuticals to countries facing
epidemics and health crises.
Senator Carr stated in the 22 March 2011 announcement that
"the new system will enable a country that is experiencing a
serious epidemic to ensure that its own population is supplied with
vital treatments". In light of the above, developing countries
experiencing a health crisis should be able to buy vital medicines
from Australia at a more affordable price.
Impact on the Australian pharmaceutical industry?
The Government further stated in the 22 March 2011 announcement
that it will support and encourage the innovation, investment and
international competitiveness by ensuring that patent owners will
receive adequate compensation for any licences issued. Furthermore,
there will apparently be measures in place that will help ensure
that pharmaceuticals exported under the system are not diverted to
other markets, but only reach those in need.
The Government has listed the Intellectual Property Laws
Amendment (TRIPS Protocol Implementation) Bill for introduction for
over a year, but as at 26 June 2012, it has not yet been introduced
or read for the first time.
Clayton Utz communications are intended to provide
commentary and general information. They should not be relied upon
as legal advice. Formal legal advice should be sought in particular
transactions or on matters of interest arising from this bulletin.
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