The ON TRIPS agreement is a minimum model agreement that allows members to more broadly protect intellectual property protection on demand. Members are free to determine the appropriate method of transposing the provisions of the agreement into their own legal and practical order. The Australian government recently drafted a bill amending national patent legislation to create a legal environment for the export of medicines under the terms of protocol and AUSFTA. The 2012 Intellectual Property Amendment Bill was released in August 2012.48 This bill provides a useful case study on how rich nations can develop legislation consistent with the implementation decision and protocol within the additional limits imposed by a bilateral free trade agreement. The explanatory statement for the exhibition project lists an eight-step procedure created by the legislation for licensing (referred to in legislation as the “patented compulsory licence for pharmaceutical inventions” or a mandatory PPI licence).49 Table 1 provides an overview and commentary on the eight-step procedure. The agreement on the use of compulsory licences through the implementation decision and protocol in production sites without production capacity appears to be a more important step in the right direction. It seems, however, that during the negotiations on the implementation of paragraph 6, the desire of rich countries to participate constructively in the search for an appropriate resolution has waned.42 Inevitably, as is often the case with international agreements of this type, TRIPS, the Doha Declaration and its continuation were political compromises that did not necessarily correspond to the original intentions. Nevertheless, it is argued here that these mechanisms should not yet be completely abandoned, if not at all, because of the lack of other options available to fill this gap. On the other hand, all countries with production capacity should make urgent efforts to implement legislation in accordance with the protocol.

Article 40 of the TRIPS ON Agreement recognizes that certain practices or licensing conditions related to intellectual property rights that limit competition can have negative effects on trade and impede the transfer and dissemination of technology (paragraph 1). Member States may adopt appropriate measures under the other provisions of the agreement to prevent or control abusive and anti-competitive intellectual property licensing practices (paragraph 2). The agreement provides a mechanism by which a country intending to take action against such practices involving companies from another Member State will consult with that other Member State and exchange non-confidential information relevant to the public for the issue in question and other information available to that member, subject to domestic law and the conclusion of satisfactory agreements for both parties regarding compliance with its confidentiality by the member. applicant member (paragraph 3). Similarly, a country whose companies in another Member State are subject to such measures may engage in consultations with that member (point 4).