Decode And Enlightment Of Drug Patent International Protection Standard In TRIPS Agreement

WTO General Council on December 6, 2005 adopted the "Amendment of the TRIPS Agreement", and its main content is to amend article 31 of the TRIPS agreement. This is the first time since the establishment of WTO agreement to amend its core. This is undoubtedly that of trade-related intellectual property rights into the WTO legal system was produced by the contradictions and conflicts in the WTO legal process has highlighted the implementation, and especially in drug patents. It is because that, in terms of " the Doha Declaration on the TRIPS Agreement and Public Health ", or to the final amendments to the TRIPS agreement, revolves around TRIPS agreement on the protection of patent medicines in the field should be involved in how to balance the interests of the relevant principal problems. What behind the changes of TRIPS agreement, how we should proceed in accordance with international conventions on drug patent protection standards and the transition from our national conditions, to find out a suitable outlet to our social and protect the public interests, are the focus of this paper. Focus on this, author uses three parts to study the international drug patent protection standards of the TRIPS agreement.In the first part, author inspects and sorts out the relevant provisions and he document of the TRIPS agreement on drug patents. The international drug patent protection standards in the TRIPS agreement is a special branch in the field of TRIPS patent law. In the TRIPS agreement, the issue of patents for drugs produced " the Doha Declaration on the TRIPS Agreement and Public Health ", " Implementation of paragraph 6 of the Doha Declaration on the TRIPS Agreement and public health , Decision of the General Council of 30 August 2003" and the "TRIPS agreement amendment". Through specific studies on these three staggered documents, we clearly see the evolution process of the protection standards of drug patent in the TRIPS agreement. This can also reflect a interactive legislative process of TRIPS agreement which is from the imbalance with the reality to relative stability. However, these documents above also have its shortcomings, "the Doha Declaration," did not completely solve the problem of Article 31 (f) in the TRIPS Agreement. The core issue of this provision is that the pharmaceutical which are produced through compulsory licensing can not been exported. On the other hand, it means that the developing countries which are lack of productivity can not get the generic drug indeed. And it can be clearly seen that the Decision of the General Council which adopted the model of exempte obligations rather the model of amendment or explaination is proved to be lack of stability. Even though, the amendment of TRIPS has not completely solved the issue of international protection standard on parmaceutical patent. It is just a relative compromise with the reality. Because, first of all, the amendment is the production of every interest. So it is very ambiguous on some special issue. Secondly, because of the wide gap of the price between generic drug and patent drug, the manufacturer can obtain profits by trade transfer easily. Lastly, theoretically, the final solution to the public health issue on developing countries should be helping them to get the pharmaceutical technology and establish correlative industry. But the plans above can hardly make the compulsory licensing in TRIPS be a final solution to solve the conflicts between drug patent holder and public interest.The second part goes through the international protection standard on drug patent in TRIPS, and analyses the interest situation behind the agreement, based on the first part. The author surveys and analyses the changes of international protection standard on drug patent in TRIPS with the theory of interest balance which has been accepted widly in intellectual property rights field, analyses the interactive balance process between the interests of patent holder and public, as well as the developed countries and developing countries. So as to unscramble the standard of TRIPS.Firstly, in the aspect of the interest between patent holder and public, TRIPS has built a higher barrier for intellectual property rights in protection field, standard, measures, and terms, that forces the customers pay more costs for intellectual property products, in additonal, affects the rights of getting health, food and education in the developing countries. On the other hand, TRIPS also achieves its social function in the balance process. In TRIPS, according to Article 8 and 31, it emphasized that the members can use the flexible provisions neatly. Further more, it definitized the situation, scope and compensatory standard of compulsory licensing. Then giving attention to two sides of patent holder and public. Secondly, in the aspect of developing countries and developed countries, because of the imbalance on economy, technology between developing countries and developed countries, the protecton standard which is according to the developed countries'standard. The standard reflects more about the interest of developed countries. And TRIPS make a great loss to developing countries. But we have to acknowledge that the imbalance has become the reality, a part of agreement. The developing countries have accepted the unjustice apparently. Meanwhile, the core of TRIPS is interest balance. The TRIPS itself also tries to seek the equilibrium between intellectual property rights and public interest, harmonize the interest between developing countries and developed countries. Because the changes in the intellectual property law accordingly to the development of science, technology and economy, the balance of intellectual property rights between developing countries and developed countries is also interactive and correlative. With the evolution of history, we can predict that the interest situation should recycl in the process of breaking and rebuiling. And TRIPS will still play the role of harmonize every interest.The third part is the revelation of the study on TRIPS, based on the former two parts. Firstly, TRIPS has released the tension between developing countries and developed countries to certain extend. But when TRIPS adopted the pharmaceutical as the object of intellectual property protection, patent holders get profits through drug patent all over the earth, take advantage of monopoly in technology and research, control the production and price of drugs, make the price at a high level. On the other hand, the countries that need drugs, risking the crisis on public health, are lack of the productivity, can not get the drug from the transnational drug manufacturer. At the same time, the compulsory licensing in TRIPS hardly works for developing countries in fact. It can not protect the customers in the developing countries. So the issue of the affordable drugs come out. In order to solve the issue, the schorlars have put forward some solutions from different angle. The paper focuses on the parallel import, the drug donation and the collaboration with the NGOs. And the paper also points out the shortcomings of the three solutons above. Moreover, in the aspect of making use of TRIPS, we should perfect our regulations on drug patent; encourage the production of the generic drugs and upgrade the level of research; perfect the regulation on the parallel import and the compulsory licensing on drug patent; take part in the territorial collaboration and collaborate with the NGOs. According to our own situation, solve the issue of drug patent.