Magic and Hope: Relaxing Trips-Plus Provisions to Promote Access to Affordable Pharmaceuticals

Abstract

Competing interests and values collide at the intersection of public health, international trade, and intellectual property. Although highly successful in securing rigid patent protection provisions in the Agreement on Trade Related Aspects on Intellectual Property Rights (TRIPS), the United States was dissatisfied with features of the agreement. In response, the United States began to negotiate bilateral free trade agreements which, while compliant with the TRIPS Agreement, include unflinchingly rigid intellectual property provisions. This Note argues that invidious “TRIPS-Plus” provisions in U.S. Free Trade Agreements, which require greater patent protections than the TRIPS Agreement, obstruct access to affordable pharmaceuticals desperately needed by impoverished populations around the globe. To encourage access to affordable drugs in low-income countries, the United States should amend its free trade agreements by incorporating a balancing test to determine when it is necessary to relax rigid trade provisions.