Startling numbers of people die every day because they do not have access to essential medicines and treatment for diseases such as HIV/AIDS, particularly in Africa and Asia. The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) was established by the World Trade Organization (WTO) to set a minimum level of protection of intellectual property rights across international borders, as well as promote and protect the welfare of humanity. This Comment reviews the history of the TRIPS Agreement, including the most recent adoption of the WTO relating to the issuance of compulsory licenses. Specifically, this Comment suggests that the WTO look to United States case law on the topic of governmental use of patents without authorization, in addition to the spirit and goals of the TRIPS Agreement, and amend TRIPS by setting adequate remuneration at a very modest royalty rate when a compulsory license is utilized. Implementation of such an amendment will prevent further delay to the access to critical medicines in developing countries and advance the objectives of TRIPS.
What a Long, Strange “TRIPS” it’s Been: Compulsory Licensing from the Adoption of TRIPS to the Agreement on Implementation of the Doha Declaration, 3 J. Marshall Rev. Intell. Prop. L. 331 (2004)