Domestic policy space and TRIPS

The tension between domestic policy space or the ability to carve out public policies based on domestic political will and intrnational trade rules has been a recurrent theme of this blog. There are no easy answers and neither is the debate in black and white. It is not whether countries have domestic policy space - it is how much of space they have and how do they exercise it? A parallel theme is can the claim of domestic space be misused for blatant, discriminatory protectionism?

I have highlighted the debate around domestic space and TRIPS in this blogpost and this one regarding compulsory licensing a few months ago. Joseph Stiglitz and Arjun Jayadev in their Project Syndicate piece interestingly highlighted the importance of domestic policy space in the context of the recent decisions around patentability and TRIPS.

"According to the Indian Supreme Court, the country’s amended patent law still places greater weight on social objectives than in the US and elsewhere: the standards of non-obviousness and novelty required to obtain a patent are stricter (especially as they pertain to medicines), and no “evergreening” of existing patents – or patent protection for incremental follow-up innovations – is allowed. The court thus reaffirmed India’s primary commitment to protecting its citizens’ lives and health. 

The decision also highlighted an important fact: Despite its severe limitations, the TRIPS agreement does have some (rarely used) safeguards that give developing countries a certain degree of flexibility to limit patent protection. That is why the pharmaceutical industry, the US, and others have pushed since its inception for a wider and stronger set of standards through add-on agreements. 

Such agreements would, for example, limit opposition to patent applications; prohibit national regulatory authorities from approving generic medicines until patents have expired; maintain data exclusivity, thereby delaying the approval of biogeneric drugs; and require new forms of protection, such as anti-counterfeiting measures. 

There is a curious incoherence in the argument that the Indian decision undermines property rights. A critical institutional foundation for well-functioning property rights is an independent judiciary to enforce them. India’s Supreme Court has shown that it is independent, interprets the law faithfully, and does not easily succumb to global corporate interests. It is now up to the Indian government to use the TRIPS agreement’s safeguards to ensure that the country’s intellectual-property regime advances both innovation and public health."

Of course, the debate whether TRIPS provides policy space depends on the area of applicability one is talking about as well as the view one holds on the extent to which international rules should impact domestic policy making. However, it is interesting to see the debate shifting from whether TRIPs provides that flexibility to how one can use the flexibility to pursue national interests. And what applies to TRIPS applies to all other WTO agreements. The questions is whether developing countries can unearth and effectively engage with these flexibilities.