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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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Chapter 1 of this thesis states in its subtitle (the hypothesis and thesis methodol- ogy) states that the points of discussion in the thesis will be supported by data gathered through interviews with IP and public health experts. The thesis has presented a duel between two opposing sides; the pharmaceutical compa- nies/TRIPS on the one side and public health issues on the other. The ensuing legal tussle has raised a lot of pertinent legal questions. The interviews were, therefore, conducted with the goal of not only answering some of the problem- atic research questions raised in the thesis through a completely different lens but also clarifying and tying up some of the loose ends in the thesis and giving them an objective view. Express permission to include each of the annexes used in this thesis was obtained from the persons interviewed. Those interviewed are alphabetically catalogued below. Annex 1 7 December 2011 Interview with Dr Heinz Hammann, Corporate Director-Patents, Boehringer Ingelheim Pharma GmbH & Co. KG, Germany, and Mrs Zinta Krumins, Head of Region PM/CHC Middle East, Asia and Africa, Boehringer Ingelheim Pharma GmbH & Co. KG, Germany Brenda Mey: How instrumental has Boehringer Ingelheim Pharma been in transferring medical technology to developing countries such as Kenya and India? Why was Cosmos’ CL application, which was filed under article 80 of the IPA, 2001 settled with a voluntary licence? Did the technology transfer agreement you signed with Cosmos Ltd in 2004 boost access to medicines in Kenya? Heinz Hammann: Our decision to...

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