U.S. pushes to limit generic drug rights - Business - International Herald Tribune

*A new development in the AIDS Generic Drugs Patent Debate?*

Some context first. One of the agreements that was accepted in TRIPS (Agreement on Trade Related Aspects of Intellectual Property Rights) was that upon declaration of a national health emergency, a nation could ignore existing patents on certain drugs like the AIDS drugs by manufacturing generic versions within their own country and selling them within their own country as well. Fair enough. The problem is that many of these countries ravaged by AIDS don't have the capability to do so and thus they turn to India and Brazil instead. And the reason why India and Brazil are allowed to export these generics for sale is because they are not parties to TRIPS yet, although they will be in 2008, which would give rise to a seperate set of problems.

My guess is that the reason why the US is getting individual agreements is to pre-empt any possibility of a rectification of the current global agreement. The pressure come 2008 might be so great that the US might agree to change that particular clause in TRIPS to allow for the import of generics. So these individual agreements would nicely get around that particular problem.

But this really isn't a new development. I think it's part of a wider movement to harmonise IP rights standards and enforcement to the higher US standard and that this is being done through the FTAs. The two most recent examples of this happening was our very own new Copyrights Act as well as Australia's amendments post FTA with the US.

Now it has to be emphasised that this is not necessarily a bad thing, but neither is it good either. A lot will have to depend on an objective assessment of whether these higher IP standards have a causal link to increase content and IP in society. Because at the end of the day, the whole area of IP law is an attempt to balance two conflicting aims: a) the protection of an author's own work (which includes all these blog posts of mine for example) and b) to encourage more information passing into the public domain.

Where this trade-off is most obvious is when one compares a trade-secret is a patent. In a patent, the government grants the inventor a temporary limited monopoly for the exploitation of his work. In return, the inventor basically sets out exactly how the invention works and this information passes into the public domain once the monopoly period is up. In contrast while a trade secret could theoretically last forever (like the formula of Coca Cola), it is premised on it never getting leaked out for once the information passes into the public domain, it remains in the public domain and at best the company can sue the person leaking the confidential information is there had been some form of relationship that established that the information was indeed confidential e.g. a fiduciary relationship or a non-disclosure agreement. But even then the remedy is pretty much limited to a breach of confidence.

Obviously, higher IP standards would prima facie encourage greater creativity as people are assured of their rights to their works but at the same time, this also obviously means that less work passes into the public domain for any given amount of time. And of course there are other considerations including how knowledge never stands alone but is created on the back of prior knowledge and as a result higher IP standards could easily go either way.

Anyway, just more stuff for debaters to swot up on.

Peace.