India, TRIPS-plus free trade agreements and the future of access to essential medicines

ISSN： 1469-8404

Source： Information & Communications Technology Law, Vol.19, Iss.3, 2010-10, pp. : 267-300

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Abstract

The issue of TRIPS-plus standards and its implications of access to essential medicines are discussed in this article in the Indian context. As a leading country in the manufacture and supply of generic drugs, the case of India is crucial when considered from the perspective of the TRIPS-plus regime and its negative consequences. Given the absence of a free trade agreement between the USA and India, a hypothetical approach is adopted in this article to analyse the potential implications of such an agreement in the future. The argument extended in this article relates to the existing norms of TRIPS-plus standards in US trade negotiations and an analysis is provided about the application of a TRIPS-plus model in the Indian context. It is argued that both for public health and trade policy reasons, India should not engage in any TRIPS-plus trade agreement with the USA as it would harm its interests on domestic and foreign fronts. India has recently adopted a new patent policy and a reasonable time should be given to relevant institutions to build an operational framework and capacity before further changes are made. This task will not be less than challenging as there is very little evidence about any positive change in the position of the USA and it would continue imposing TRIPS-plus standards through a variety of trade instruments. It is further argued in this article that the best mitigating strategy for developing countries like India lies in the combination of multilateralism and networking along the lines of a rights-based approach.