The future of IP policy in developing countries: The impact of Patricia and Norvatis decisions

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Two major events that have taken place in a span of two years will radically transform the future of intellectual Property (IP) policies especially in developing countries. These events are Kenya’s Patricia Asero and India’s Norvatis High Court and Supreme Court decisions in 2012 and 2013 respectively. The policy areas that have been henceforth brought into perspective for discussions include: hierarchy human rights and intellectual property laws; the utilisation of opposition and revocation procedures; the future of free trade agreements; and the centrality of public interest within WIPO, WTO and similar institutions.
Hierarchy of laws: For a long time now the debate as to the precise hierarchy of IP rights vis a vis that of human rights has remain unclear. This has been exacerbated by the fact that some aspects of IP rights are actually human rights strictly speaking under the 1966 International Covenant on Economic, Social and Cultural rights. The Patricia Asero decision however sought to clarify that IP rights are subordinate to human rights in terms of hierarchy. Moving forward, it would be crucial to address this matter further in a multilateral treaty particularly focusing on the relationship between human rights and IP rights and also distinguishing the position of economic and human rights elements under IP rights.
Utilisation of opposition and revocation procedures in developing countries: Most developing countries provide for either opposition and revocation procedures in their IP rights laws. However, the utilisation of these procedures have been dismal partly because of limited legal capacity. However, with the successful opposition of the Norvatis claim in its Gleevec patent there is bound to be renewed confidence in these procedures. This will positively affect their utilization.
The future of Free Trade Agreements (FTAs): First, the US and European countries will double their efforts to negotiate FTAs outside the Trade Related Aspects of Intellectual Property Rights (TRIPS) Agreement. This is because the TRIPS Agreement has proven to be unfavourable to their interests. The recent election of a Brazillian to head the World Trade Organisation (WTO) is an indicator of the growing influence asserted by developing countries in this forum. The Economic Partnership Agreements (EPAs) and Trans-Pacific Partnership Agreement (TPP) in Africa and Asia respectively is instructive of the change in policy by particularly the US from multilateral to a more favourable bilateral negotiating forums. With regards to developing countries, the taking into consideration of flexibilities under TRIPS Agreement will become a key negotiating agenda in these forums.
The centrality of public interest agenda: Both cases emphasize the importance of public interest. Indeed, both the WTO and WIPO are deeply involved in discussions around IP rights and public interest. In the coming years, public interest considerations will define the future of IP protection and enforcement.

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