Using the flexibilities of Article 30 TRIPS to implement patent exceptions in pursuit of Sustainable Development Goal 3

Abstract

Despite over 25 years passing since TRIPS entered into force, the full potential of the patent exceptions provision under Article 30 TRIPS (Article 30) is yet to be realised. The hesitation by developing states to implement new patent exceptions in their domestic laws has presented a barrier to reconciling the tension between protecting patent rights and achieving access to essential medicines for all as committed by states under Sustainable Development Goal 3 (SDG 3). This article addresses the uncertainty of the interpretation of Article 30 through a doctrinal analysis of treaty interpretation rules and the recent Australia‐Tobacco Plain Packaging decisions. It proposes an original interpretation of Article 30 that permits public interest considerations, and uses this interpretation to justify a proposed stockpiling exception for pandemic and epidemic preparedness aimed at facilitating access to essential medicines to achieve SDG 3. Accordingly, developing states should feel more confident about implementing patent exceptions tailored to their public interest needs in pursuit of SDG 3.