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Thailand, it has considered by many scholars as the most active user of
compulsory licensing tool among the countries in the South.
The states which do not possess manufacturing capacity have to
source generic drugs overseas and are therefore affected not only by their
domestic IP laws and policies, but also by the IP laws and policies of the
exporting nations. If a drug is granted patent in such an exporting nation, a
compulsory license must firstly be granted in order to be manufactured there.
The TRIPS Agreement does establish a substantial hindrance in the Article
31(f) providing that the compulsory licensing is prevalently for the supply of
the local market, so this provision frustrates the capacity of the poor countries
to apply compulsory licensing by restricting their capacity to seek a supplier.
The WTO Council for TRIPS attempted to address this issue in 2001 and has,
afterwards, made the Decision in August, 2003 to allow compulsory licensing
for export to the nations which do not have adequate manufacturing
(29)
ability, if they fulfill some stipulated criteria of registration and packaging.
Nevertheless, this particular solution has been restricted due to cumbersome
(30)
procedures. Another flexibility which can be applied is the facilitation of
parallel importation, whereby states import drugs which were legitimately put
on the market in another state by the owners of the patents or its licensees
(31)
in order to benefit from price disparity across national borders.
(29)
World Trade Organization, Implementation of Paragraph 6 of the Doha Declaration on the
TRIPS Agreement and Public Health, Decision of the General Council of August 30, 2003
(WT/L/540 and Corr.1).
(30)
Médecins Sans Frontières,†Neither Expeditious, nor a Solution: The WTO 30 August
Decision Is Unworkable,†(An illustration through Canadaûs Jean Chr?tien Pledge to Africa,
2006).
(31)
TRIPS Agreement, Article 6, allows its members to choose their own regime of patent
exhaustion.
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