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creatively in one or more forms that are suitable to their domestic settings,
even when they are not explicitly set forth in the TRIPS Agreement. However,
the domestic implementation of the flexibilities described here is jeopardized
by the pressure for better standards of patent protection, resulting from
post-TRIPS bilateral or multilateral Free Trade Agreements (FTAs) between the
developed nations and developing nations.
3. Complications in Implementing TRIPS Flexibilities
There are some complications in connection with the implementation
of TRIPS flexibilities in developing nations: (a) the absence of restrictions on
patentability requirements, (b) Unilateral pressure from the developed countries,
(c) TRIPS-plus obligations through the FTAs and (d) Non-patent barrier created
by the protection of pipeline production
A. The absence of restrictions on patentability requirements
The research reflects that not many developing nations have
integrated a full range of TRIPS flexibilities aforementioned into their domestic
(35)
patent laws. Further, to allow one flexibility without employing another can
limit the accessibility to drugs. For instance, without restrictions on the scope
of patentable subject matter and patentability requirements, patent oppositions
might not completely function since it would be difficult to oppose good
patents for public health. Correspondingly, if a country does not provide patent
opposition, the limited scope of patentability will be difficult to be enforced.
The research illustrates that Thailand has taken very slight advantage of
(35)
Said and Kapczynski, çAccess to Medicines: The Role of Intellectual Property Law and
Policy,é†9.
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