DEVELOPING COUNTRIES AND INTELLECTUAL PROPERTY ENFORCEMENT MEASURES: IMPROVING ACCESS TO MEDICINES THROUGH WTO DISPUTE SETTLEMENT

Melissa Blue Sky, American University, Washington College of Law

Abstract

In 2008 and 2009 customs officials in the European Union, alleging patent infringement, detained and seized generic medicines in transit from India and Brazil. The two countries both requested consultations through the World Trade Organization’s Dispute Settlement Understanding (“DSU”) based on alleged violations of the Agreement on Trade-Related Aspects of International Property Rights (“TRIPS”) and other Agreements. These disputes are different from all prior—they are premised upon the claim that the EU violated the TRIPS agreement through use of its border measures that went beyond the TRIPS minimum standards, rather than claiming that the other country is not meeting those minimum obligations. As developed countries seek to enact higher intellectual property standards outside the WTO and limit global access to medicines, developing countries can use the DSU to challenge these restrictions, and pursue policies that promote global access to medicines.