Patent Breaking or Balancing?: Separating Strands of Fact from Fiction Under TRIPS

This article provides the first comprehensive analysis of when compulsory licensing of patents is permissible as a matter of international law under the Agreement of Trade-Related Aspects of Intellectual Property (TRIPS). 

Thailand's recent compulsory licenses of patents on a variety of medications provide a convenient vehicle to analyze the limits of compulsory licensing under TRIPS. Thailand's actions are unique; most countries hesitate to issue compulsory licenses in the wake of legal uncertainties regarding TRIPS requirements as well as political pressure. This article capitalizes on the many issues involved in Thailand's licenses to provide an authoritative interpretation of the scope of compulsory licensing under TRIPS. 

This article has three goals. First, it diffuses current misconceptions by providing an accurate interpretation of TRIPS. Second, it explores key terms regarding compulsory licenses that require further analysis. Finally, it provides a new framework for understanding competing patent perspectives that presently infiltrate discussions and interpretations of the law. Understanding these competing perspectives is important not only to address current and future controversies concerning compulsory licenses, but also for confronting broader issues at the global and domestic intersection of patents and public health.