Finding a balance in the protection of intellectual property rights (IPRs) between the short-term interest in maximizing access to medical technologies and the long-term interest in promoting creativity and innovation is important at the national level, argue Professor Watal. This task has been made more difficult at the international level on account of international IPR treaties that may not take account of differing levels of economic, technological, and social development. Perhaps nowhere do these issues excite stronger feelings than in regard to pharmaceutical patents, where tension between the need to provide incentives for research and development into new medicines and the need to make existing medicines as widely available as possible can be acute. A specific issue is examined. In paragraph 6, the Doha Declaration recognized the problem of countries with insufficient or no manufacturing capacities in the pharmaceutical sector in making effective use of compulsory licensing. Such countries could, under normal TRIPS rules, import under a compulsory license since there is no special problem with Members issuing compulsory licenses for importation as well as for domestic production. The problem, however, was whether sources of supply from generic producers in other countries to meet such demand would be available, particularly given Article 31(f) of the TRIPS Agreement, according to which production under a compulsory license in those other countries must be predominantly for the supply of the domestic market of the Member. The problems facing countries with insufficient capacities in the pharmaceutical sector in accessing sources of supply were expected to increase as some countries with important generic industries were coming under an obligation to provide patent protection for pharmaceutical products as from 2005. In order to solve this problem, the WTO General Council adopted on August 30, 2003, a Decision that waives in certain circumstances Article 31(f) and (h) of the TRIPS Agreement. This judgment was designed to meet the concerns of those who feared that the Decision was too open-ended and might be abused to undermine the benefits of the patent system. It recognizes that the Paragraph 6 system set out in the Decision should be used in good faith to protect public health and not to pursue industrial or commercial policy objectives. It addresses some concerns relating to the risk of diversion, and it sets out ways in which any differences arising from the implementation of the system can be settled expeditiously and adequately. As a conclusion, it is argued that the WTO is often portrayed by its detractors as a club for rich countries meant to perpetuate their world dominance. The TRIPS Agreement, particularly with its obligation to provide patents for pharmaceuticals, is often cited as an example of this. Therefore, it is up to Members to use the flexibilities offered to them in the TRIPS Agreement as well as the additional flexibility to obtain patented medicines from other WTO Members given in subsequent instruments to obtain more
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