The Implication of the Trips and Intellectual Property Rights for the Access to Affordable Generic Drugs: A Case Study of Kenya

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The main purpose of this study is to examine the implication of TRIPs in intellectual property, particularly in regard to rights of access to affordable generic drugs in developing countries and emphasizing in the context of the Kenyan case study. TRIPs was aimed to assist in universalizing the standards of Intellectual Property Rights. It was also geared to frame the rules of the game of developing counties as par with the developed countries.

Secondary data collection method was applied in this study. This case study is based on the documentary survey whereby there was available data in the university library and internet sources. This study design was descriptive because it allows for prudent comparison of the research findings. The qualitative design chosen for this research is theory grounded, or natural inquiry. Grounded theory research unfolds and emerges empirically from data and is more responsive to contextual values rather than researcher values, but other design used in this study was exploratory and explanatory. The study examined on implications of TRIPs provisions for access to affordable generic drugs in Kenya. Governments in developing countries that attempt to bring the price of medicines down have come under pressure from industrialized countries and the multi-nationals pharmaceutical industry. While TRIPs does offer safeguards to remedy negative effects of patent protection or patent abuse, it is unclear whether and how countries can make use of the safe guards when patents increasingly present barriers to medicine access.

The study concludes that TRIPs was theoretically designed as a social policy tool to encourage innovation by establishing minimum standards for the protection of intellectual property including patents on pharmaceutical; however, these standards were developed based on Western European and North American property law by wealthy countries with little regard for the needs of developing countries. The study recommends that the decision of 31st August 2003 should be used in good faith to protect public health and not as an instrument to pursue industrial or commercial policy objectives .It should be appreciated that the decision would be defeated if products supplied thereunder were diverted from the markets for which they were intended and that it is important for member countries to seek to resolve any issues arising from the use and implementation of the decision expeditiously and amicably.

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