Human Rights and TRIPS Exclusion and Exception Provisions

Abstract

The Agreement on Trade‐Related Aspects at Intellectual Property Rights contains several provisions that both allow for exclusion from patentability, as well as exceptions from the exercise of the rights of the patent holder. With the exception of the first part of article 30, none of these have until now been clarified by the World Trade Organization's (WTO's) dispute‐settlement system. Based on an in‐depth analysis of a number of these TRIPS provisions, the article identifies whether and how human rights provisions, as well as more overall human rights principles, can be applied in order to strengthen and confer legitimacy to these exclusion and exception provisions. While there is general agreement of the weight of human rights, there is more disagreement on the relevance of human rights, primarily due to the general wording of human rights provisions. Without undertaking a full analysis of the relevant human rights provisions, the article finds that human rights also do provide guidance in negotiations and enforcement of intellectual property rights. An analysis of the prospects for taking into account human rights within the dispute‐settlement system and in the political bodies of the WTO is also conducted.

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