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TRIPS Flexibilities On Patent Enforcement : Lessons from Some Developed Countries Relating to Pharmaceutical Patent Protection

Authority for national judiciaries to issue permanent and preliminary injunctions is required by the Agreement on Trade - Related Aspects of Intellectual Property Rights (TRIPS), Articles 44 and 50. But the TRIPS Agreement does not require the issuance of injunctions in any particular circumtances, and does not harmonize the laws on which national jurisdictions derive their injunctive relief authorities. Thus, countries remain free to refuse prohibitory injunctive relief for adjudicated or likely patent infringement, particularly if "reasonable compensation" is offered in the form of an "ongoing royalty" or an "interim royalty" payment, which acts similarly to a compulsory license. This paper explains the existing legal standards for permanent and preliminary injunctions in the United States and Canada and discusses trends regarding the issuanceor denial of injunctions for pharmaceutical patents in those jurisdictions (with occasional reference to other common - law jurisdictions). Although judges in these jurisdictions more routinely deny preliminary prohibitory injunctions, legislation linking generic pharmaceutical regulatory approvals to the patent system and imposing stays of such approvals normally avoid the need for such preliminary injunctions, Consistent with the TRIPS Agreement, developing country judges may make different choices, based on the ability to provide reasonable compensation for harms or based on a different weighing of the importance of assuring affordable access to medicines relative to providing innovation incentives.

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Informasi Detail

Judul Seri

Research Paper

No. Panggil

346.048 JOS t

Penerbit

Geneva : South Centre., 2020

Deskripsi Fisik

53 hlm

Bahasa

English

ISBN/ISSN

ISSN 1819 -6926

Klasifikasi

346.048

Tipe Isi

text

Tipe Media

other

Tipe Pembawa

-

Edisi

October 2020

Subjek

TRIPS
Patent
Pharmaceuticals

Info Detail Spesifik

Professor of Law, DePaul University College of Law, Chicago, Illinois, USA. The author thanks Sydney Warda for reserach assistance, and Pofessor Jorge Contreras and Norman Siebrasse for their prior work, which contributed substantially to the author's understanding, without attributing to them any views expressed in this paper.

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