A/HRC/11/12
page 28
93. The Special Rapporteur also notes possible concerns that recent developments in national
legislation105 and international negotiations on an anti-counterfeiting trade agreement (ACTA)
may impose a TRIPS-plus enforcement regime.106 The lack of transparency and secrecy
surrounding the negotiations is of particular concern.
V. CONCLUSIONS AND RECOMMENDATIONS
94. The framework of the right to health makes it clear that medicines must be available,
accessible, acceptable, and of good quality to reach ailing populations without
discrimination throughout the world. As has been evident, TRIPS and FTAs have had an
adverse impact on prices and availability of medicines, making it difficult for countries to
comply with their obligations to respect, protect, and fulfil the right to health.
95. Similarly, lack of capacity coupled with external pressures from developed countries
has made it difficult for developing countries and LDCs to use TRIPS flexibilities to
promote access to medicines.
96. Flexibilities were included in TRIPS to allow States to take into consideration their
economic and development needs. States need to take steps to facilitate the use of TRIPS
flexibilities.
97. The Special Rapporteur therefore recommends that developing countries and LDCs
should review their laws and policies and consider whether they have made full use of
TRIPS flexibilities or included TRIPS-plus measures, and if necessary consider amending
their laws and policies to make full use of the flexibilities.
98. LDCs should make full use of the transition period and in relation to medicines
revoke or suspend their patent laws, if necessary, for the balance of the period. LDCs
should also consider asking for a further extension of the transition period.
99. LDCs should use the transition period to seek the most effective technical and other
assistance from countries and institutions to develop technical capacity and also explore
options to establish local manufacturing capabilities.
100. Developing countries and LDCs should establish high patentability standards and
provide for exclusions from patentability, such as new forms and new or second uses, and
combinations, in order to address evergreening and facilitate generic entry of medicines.
101. Developing countries and LDCs should adopt the principle of international
exhaustion and provide for parallel importation with simplified procedures in their
national laws.
105
Kenya Anti-Counterfeit Act and Uganda anti-counterfeit bill.
106
EU Parliament resolution, INI/2008/2133 of September 2008.
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents