A Full Description of WTO TRIPS Flexibilities Available to ARIPO Member States and a Critique of ARIPO’s Comparative Study Analyzing and Making Recommendations Concerning those Flexibilities

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The 1994 TRIPS Agreement, signed by the members of the World Trade Organization, established harmonized, minimum standards of intellectual property protection for copyright and related rights, trademarks, geographic indications, patents, protection of new varieties of plants, layout designs of integrated circuits, and undisclosed information including some trade secrets and test data. TRIPS also provided for minimum enforcement provisions and state-to-state dispute settlement. Today, it is the key treaty affecting the African Regional Intellectual Property Organization (ARIPO) Member States’ access to affordable medicines.

The US and EU in particular are well known for trying to convince countries to enact even more patent, data, and enforcement rights than are required by the TRIPS Agreement. Such measures, if adopted, are most commonly referred to as TRIPS-plus. Individually and collectively, TRIPS-plus measures reduce the policy space that ARIPO Member States would have to increase access to affordable medicines.

The purpose of this article by Brook K. Baker is to fully outline allowable TRIPS-compliant flexibilities that ARIPO Member States might incorporate in their national legislation to take full advantage of opportunities to maximize access more affordable medicines to combat HIV, TB, malaria and other infectious and non-infectious diseases.

The author also critiques the previous study commissioned by the ARIPO Secretariat, “A Comparative Study of the Industrial Property Laws of ARIPO Member States.” The study attempts to analyze whether Member States have taken advantage of available TRIPS flexibilities and recommends best practices for harmonization of Members’ legal frameworks. This article finds that the study failed to comprehensively identify and analyze all relevant TRIPS flexibilities and best practices.

Baker identifies two main problems with the study. First, the study failed to provide a full analysis of TRIPS flexibilities. This makes it impossible to properly assess domestic legislation to identify law reform opportunities that might maximize ARIPO’s Member States’ policy space to enhance access to more affordable medicines of assured quality. Second, the study bases many of its weak and under-inclusive recommendations not on well-known TRIPS-compliant flexibilities but instead on what some ARIPO Members have incorporated into existing law. This would lead not only to the perpetuation of several TRIPS-plus measure but also to a huge lost opportunity to incorporate “best practice” flexibilities into Member States’ industrial policy laws.

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