The Curtailment of the TRIPS Agreement as an Option to Facilitate Access to Medicines
The Curtailment of the TRIPS Agreement as an Option to Facilitate Access to Medicines
Laila Barqawi and Mohammed El Said
 
ABSTRACT: The debate about the role of patent protection as a barrier to access to medicines has taken the frontlines in recent years.1 Concurrently, calls for the possibility of terminating the TRIPS Agreement have gained momentum and are becoming an appealing prospect by many proponents in high- and middle-income countries. Such propositions are formulated in consideration of the constraints and the monopoly of rights and innovations that originator drug companies -mainly residing in high level income states- have illustrated so clearly during the Covid-19 Pandemic. The circumstances, therefore, that existed when negotiating TRIPS have shifted clearly from the circumstance and spirit of what TRIPS was initially set out to achieve.
The ongoing reviews of TRIPS which include the Doha Declaration,3 amendments of Article 31 and more recently the Waiver on TRIPS provide strong evidence that the system is not functioning as originally envisaged. However, does this warrant the termination or rather the curtailment of TRIPS as a more realistic and practical solution? Curtailment, for the purpose of this paper, operates on two levels, at a national level whereby more patchwork legislation is needed to counteract the monopolistic impact of exclusive rights, and at an international level, where amendments to the TRIPS Agreement would trigger automatic mechanisms to limit the role of the patent system in certain circumstances under some specific conditions.
This paper advances the debate on these two levels, by proposing the urgent need to address the current global discrepancies and challenges surrounding medicines’ affordability and availability. It contends that by addressing the current issues within the Agreement, the TRIPS Agreement and patent regimes could be preserved in the long run.

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