Abstract:
The Agreement on Trade Related Aspects of Intellectual Property (“TRIPS”) is the legal instrument which sets common standards for World Trade Organization (“WTO”) members regarding, inter alia, the use of patents. Article 31 of TRIPS provides for Government use of a patent without the rights holder’s authorisation (ie, under a “compulsory licence”). It was recently amended to allow the export of patented pharmaceutical products under compulsory licence subject to certain safeguards. This article explains the rationale behind the amendment and examines the nuances of one such safeguard – that of anti-diversion measures. It suggests possible interpretations of the text in question and proposes approaches which WTO members may consider when implementing such measures.