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The Legal Duel: The TRIPS Agreement and Drug Access Issues

Is the Agreement Actually the Cunning Manoeuvre it has been Dubbed?

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Brenda Mey

This thesis discusses the flexibilities built into the Agreement on Trade Related Aspects of Intellectual Property Rights that are relevant for ensuring access to and availability of new medicines for the treatment of life-threatening diseases. Using Kenyan and Indian patent laws as case studies, the thesis examines the experience these countries have had in making use of the flexibilities. The thesis concludes that besides the TRIPS flexibilities, the resolution of the problem of access to medicines requires a concrete and a potent mix of country specific non-IP strategies. To test the hypotheses advanced in it, the thesis applies descriptive, qualitative and quantitative methodologies as well as interpretive analysis of court cases.

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This dissertation would not have been completed without the help of a number of people, who in one way or another, offered me enormous support, guidance and motivation during the years my academic hegira. First, I would like to express my sincere gratitude to my supervisor Professor Dr. Annette Kur whose guidance, endless patience and encouragement helped weave together the chapters of this thesis and give them their final form. I am profoundly grateful to Professor Dr. Reto M. Hilty and to Max Planck Institute for Intellectual Property, Competi- tion and Tax laws for the financial support that enabled me to conduct research at one of the world’s best intellectual property law institutes. Many thanks go in particular, to Dr. Tihani-Prufer Kruse who stood by me through it all. Her friendship, unconditional moral support, inspiration and active interest in my research work sent my spirit soaring, especially as hope for comp- leting this thesis became palpable. I am also indebted to Dr Eva-Maria Bastian for her support, and for cheering on me as I made progress with this thesis. I would also like to express my gratitude to Dr. Henning Grosse Ruse Khan for the discussions, constructive comments and suggestions, not to mention the valuable reading materials I got from him that significantly helped me in fine-tuning this thesis. Special thanks also to Dr. Heinz Hammann, Dr. Prakash K. Patel, Dr. Vishwa Mohan Katoch, Henry Kibet Mutai, PhD, Jon Pender, Sukhdeep Singh and Mrs Zinta Krumins for the time and...

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