PATENTS OR PATIENTS? CHALLENGING TRIPS IN THE BATTLE BETWEEN INTELLECTUAL PROPERTY RIGHTS AND ACCESS TO ESSENTIAL MEDICINES

Since 1995, the TRIPS Agreement has continued to shape the global landscape of access to medicines. Yet, the promise of affordable healthcare remains unfulfilled. The COVID-19 pandemic exposed these long-standing inequalities more sharply. It revealed how IP rules can both enable and obstruct public-health responses. Contrary to viewing TRIPS as a mere trade barrier, this paper contends that its objectives and flexibilities provide interpretative space for public-health concerns. The analysis considers the Doha Declaration on TRIPS and Public Health alongside the right to health under Article 12 of the ICESCR. Through a doctrinal analysis guided by the Vienna Convention on the Law of Treaties, the article examines how TRIPS flexibilities may be interpreted in a manner sensitive to public-health concerns. The provisions providing flexibilities are demonstrated in practice through case studies from India, South Africa, Thailand, and Canada. The article also considers the COVID-19 TRIPS waiver debate and the 2022 MC12 Ministerial Decision. The study shows that legal regulations alone are inadequate. The extent to which patent law facilitates or impedes access to medicines is contingent upon institutional design, political will, and interpretation. The study finds that TRIPS and the right to health need not be treated as inherently conflicting, although the use of human-rights norms in TRIPS interpretation remains subject to the limits of systemic integration under VCLT Article 31(3)(c). The research proposes a four-stage ‘AAAQ-Based Proportionality Test (ACPT)’ that uses Availability, Accessibility, Acceptability, and Quality within a structured assessment of public-health objectives, available alternatives and patent-holder interests.