Science and innovation can profoundly affect our capacity to prevent, detect, and treat disease. Now, more than ever, the world has clear insight into the vital role of research and discovery in protecting our collective health and wellbeing. While it may not be difficult for the public or policy makers to generally agree that good ideas should be rewarded, the perception of the importance of patents becomes more convoluted when they are related to pharmaceuticals, particularly pharmaceuticals that are expensive and potentially life saving.
The Agreement on Trade-Related Aspects of Intellectual Property Rights (“TRIPS”), a multilateral treaty whose drafters aspired to create consistency and predictability in intellectual property protection, came into force in 1995. TRIPS was an important step in IP protection for pharmaceuticals, as it required signatories to extend patent protection to these products. Through Article 31, TRIPS also provided flexibility for signatories to use the subject matter of a patent without authorization of the patent holder under some circumstances – a permission more commonly referred to as a compulsory license. However, despite their availability under TRIPS, few compulsory licenses were issued post-TRIPS until the 2000s.