Competing Views. Article 31bis as a Small Piece to a Larger Puzzle 30
Competing Views. Article 31bis as a Small Piece to a Larger Puzzle Importantly, there are competing views that Article 31bis, perhaps, has not been plagued by shortcomings. These views focus on the fact that Article 31bis is one piece of a much larger complex that is focused on ameliorating issues pertaining to access to medicines. One argument focuses on the fact that Article 31bis has not been used more frequently because compulsory licensing under the framework is just one way of many to access medicines.154 Under this view, lack of use of the framework cannot be used as a proxy for lack of interest in the program or lack of success. This argument also highlights the fact that no member delegation flagged any major obstacles as the framework was being developed.155 Unfortunately, however, this is a somewhat shortsighted view of the framework. The functioning of a new program or framework in theory and how it actually works in practice can often result in two radically different visions and outcomes. That no objections or obstacles were brought up by members during the development stage could have been more a feature of enthusiasm for progress in the area and the fact that, on paper, the system was expected to function well. For this argument to stand, there have to be actual other means for resource-poor countries to have access to the medicines they need. Although there is some suggestion that resources like the Medicines Patent Pool (MPP) and pricing models that facilitate access to medicines could aid in this area, it is not clear that they have played a sufficient role in increasing access to developing and least-developed countries.156 The MPP, a UN-backed public health organization, allows drugs that are still under patent protection to be OFFICE OF THE UNITED STATES TRADE REPRESENTATIVE (Apr. 24, 2020), xxxxx://xxxx.xxx/about-us/policy-offices/press-office/press-releases/2020/april/usmca-enter- force-july-1-after-united-states-takes-final-procedural-steps-implementation; See, e.g., Xxx Xxxxxxx, As New NAFTA Takes Effect, Much Remains Undone, N.Y. TIMES (July 1, 2020), xxxxx://xxx.xxxxxxx.xxx/2020/07/01/business/economy/usmca-takes-effect.html.
Competing Views. Article 31bis as a Small Piece to a Larger Puzzle 30 V.POTENTIAL SOLUTIONS AND ROADBLOCKS TO THE ARTICLE 31BIS PROBLEM 32 a. Regional Agreements and Economies of Scale 33 b. Encouraging Infrastructure Development 33 c. Preventing Drug Sharing and Promoting Drug Compliance 35 d. Data Exclusivity 36 VI. LESSONS AND CONCLUSIONS 37 * X.X., New York University School of Law, 2020; Ph.D. (Microbiology), Yale University 2017. I would like to thank Xxxxxxxxx Xxxxxxxx X. Dreyfuss for her guidance on this research and for her helpful comments on the draft. I would also like to thank the members of the Spring 2019 International Intellectual Property class at New York University School of Law for providing constructive feedback on this project. Finally, I would like to thank Xxxxxx Xxxxxxx, MPH for her helpful discussions on preventing drug sharing in the context of HIV/AIDS, and Xxxxxxxxxxx Xxxxxx, PhD for helpful comments on addressing biologics-specific concerns of Article 31bis.
