Abstract:
The conflict between protection of a drug manufacturer's intellectual property rights and the national security of States affected by bird flu is examined with reference to refusal by F Hoffman-La Roche Ltd. and Gilead Sciences Inc. to allow the generic manufacturing of Tamiflu. Two approaches under international law that permit a State to manufacture Tamiflu without acquiring a sublicense for the patent are suggested. One is the compulsory licensing regime set out in article 31 of the World Trade Organization (WTO) Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). The other is the customary international law doctrine of necessity presented in the International Law Commission's Draft Articles on State Responsibility. The international legal obligations with regard to each approach are discussed.
