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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?


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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Table of acronyms and abbreviations


& And AB Appellate Body ADB Asian Development Bank AG Aktiengesellschaft AIR All India Reporter AIR SC All India Reporter Supreme Court ALL ER All England Reports ASAQ. Artesunate (AS) and amodiaquine (AQ) ASMQ. Artesunate (AS) and mefloquine (MQ) ASEAN Association of South East Asian Nations APEC The Asia-Pacific Economic Cooperation (APEC ARIPO African Regional Industrial Property Organisation ARVs Antiretrovirals BCLR Butterworths Constitutional Law Reports BeckRs Beck-Rechtsprechung BGE Schwiezer Bundesgerichtentscheid BNA Bureau of National Affairs Burr. Burrows King’s Bench Reports CASRIP Center for Advanced Study and Research on Intellectual Proper- ty CBD Convention on Biological Diversity CC Constitutional Court C.C.D. Compensation Court Decisions Ch. Chancery Ch App Chancery Appeals Ch. D. Chancery Division Cir. Circuit Civ. Civil CLEA Collection of Laws for Electronic Access CLR Commonwealth Law Reports / Court Law Reporter C.M.L.R. Common Market Law Review CMPI Center for Medicine and Public Interest cxxvi CL (s) Compulsory Licence(s) Co Company COHRED Council on Health Research for Development COMESA Common Market for Eastern and Southern Africa Corp Corporation Cr. App. R (S) Criminal Appeal Reports (Sentencing) CS (OS) Civil Suit-Original suit CSIR Council of Scientific and Industrial Research CUTS Centre for Competition, Investment & Economic Regulation DLT Delhi Law Times DNA Deoxyribonucleic acid DNDi. Drugs for Neglected Disease Initiative DSB Dispute Settlement Board DSU Dispute Settlement Understanding E.A East Africa EAC East African Community EATG European AIDS Treatment Group EC European Community ECHR European Convention for the Protection of Human and Funda- mental Rights ECR European Court Reports ECHR European court...

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