The 2002 Doha Declaration reaffirmed that the TRIPS Agreement should not prevent members from taking the necessary measures to protect public health. Despite this recognition, less developed countries have argued that flexible TRIPS provisions, such as compulsory licensing, are almost impossible to enforce. Less developed countries, in particular, cited their young domestic manufacturing and technology industries as evidence of the imprecision of the policy. The TRIPS Agreement is an agreement on minimum standards that allows members to guarantee, if they so wish, broader protection of intellectual property. Members are free to determine the appropriate method for implementing the provisions of the Agreement in their own legal and practical order. The obligations under Articles 3 and 4 shall not apply to procedures under multilateral agreements concluded under the auspices of WIPO concerning the acquisition or maintenance of intellectual property rights. Data exclusivity and other TRIPS Plus provisions are often encouraged in the context of free trade agreements between developed and developing countries. Despite the Doha Declaration, in recent years many developing countries have been under pressure to introduce or apply even stricter or more restrictive conditions in their patent laws than required by the TRIPS Agreement, known as the ”TRIPS Plus” provisions. Countries are under no obligation under international law, but many, such as Brazil, China or Central American countries, have had no choice but to take them up in trade agreements with the United States or the European Union. These have disastrous effects on access to medicines.
(a) arising from international agreements on mutual legal assistance or application of a general nature which are not particularly limited to the protection of intellectual property; Article 40 of the TRIPS Agreement provides that certain practices or conditions relating to intellectual property rights that restrict competition may have negative effects on trade and impede the transfer and dissemination of technology (paragraph 1). In accordance with the other provisions of the Agreement, Member States may take appropriate measures to prevent or control abusive and anti-competitive IPR licensing practices (paragraph 2). The Agreement provides for a mechanism where by which a country wishing to combat practices in which companies of another Member State participates shall enter into consultations with that other Member State and provide non-confidential information publicly available and relevant to the matter in question and other information at its disposal, subject to national law and the conclusion of satisfactory agreements on compliance with its confidentiality by the requirement. (paragraph 3). . . .
