Lessons from India and Thailand for Cambodia's future implementation of the TRIPS Agreement for pharmaceutical patents

• Published date: 01 July 2023
• Author: Brigitte Tenni,Joel Lexchin,Sovath Phin,Chalermsak Kittitrakul,Deborah Gleeson
• Date: 01 July 2023
• DOI: http://doi.org/10.1111/jwip.12267

Received: 28 January 2023

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Accepted: 13 February 2023

DOI: 10.1111/jwip.12267

ORIGINAL ARTICLE

Lessons from India and Thailand for Cambodia's

future implementation of the TRIPS Agreement

for pharmaceutical patents

Brigitte Tenni

1,2

|Joel Lexchin

3

|Sovath Phin

4

|

Chalermsak Kittitrakul

5

|Deborah Gleeson

6

1

School of Psychology and Public Health,

La Trobe University, Victoria, Melbourne,

Australia

2

Nossal Institute for Global Health, University

of Melbourne, Melbourne, Victoria, Australia

3

School of Health Policy and Management,

York University, Toronto, Ontario, Canada

4

Faculty of Law, Pannasastra University of

Cambodia (PUC), Phnom Penh, Cambodia

5

Access to Medicines Campaign, AIDS Access

Foundation, Bangkok, Thailand

6

School of Psychology and Public Health,

La Trobe University, Melbourne, Victoria,

Australia

Correspondence

Brigitte Tenni, School of Psychology and

Public Health, La Trobe University,

Melbourne, VIC, Australia.

Email: btenni@unimelb.edu.au

Abstract

Cambodia is expected to graduate from least developed

country (LDC) status in the near future, at which time it will

be required to make patents available for pharmaceutical

products and processes to meet its obligations under the

Agreement on Trade Related Aspects of Intellectual

Property Rights (TRIPS). Given its impending transition

from LDC status, there is a need to balance Cambodia's

intellectual property (IP) policies and regulations with public

health priorities to ensure access to affordable life‐saving

medicines. This will be critical to achieving universal health

coverage, one of the United Nations' Sustainable Develop-

ment Goals. This paper examines Cambodia's IP laws and

regulations to identify provisions which could reduce

access to affordable generic medicines when it starts to

grant patents for pharmaceuticals. It systematically com-

pares Cambodia's IP laws and regulations applicable to

patents with those of Thailand and India—two developing

countries which have had some successes in preserving

access to medicines despite the introduction of pharma-

ceutical patents. It identifies lessons for Cambodia from the

experiences of Thailand and India in implementing TRIPS

and using TRIPS flexibilities such as compulsory licensing to

J World Intellect Prop. 2023;26:166–194.166

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wileyonlinelibrary.com/journal/jwip

This is an open access article under the terms of the Creative Commons Attribution License, which permits use, distribution and

reproduction in any medium, provided the original work is properly cited.

© 2023 The Authors. The Journal of World Intellectual Property published by John Wiley & Sons Ltd.

ensure access to a sustainable supply of affordable generic

medicines. India's experience of implementing TRIPS offers

a practical and valuable lesson in applying TRIPS for the

greatest public benefit. Thailand, although it has not utilised

TRIPS flexibilities as extensively as India, also offers

valuable lessons in adapting and interpreting IP law to

ensure sustainable access to generic medicines, especially

in relation to compulsory licencing. Key recommendations

for reform for Cambodia include strengthening the use of

preventive and remedial TRIPS flexibilities and removing

criminal sanctions for patent infringements. Cambodia

should reject any TRIPS‐plus provisions in its patent

legislation, avoid membership of bilateral or plurilateral

trade agreements that include TRIPS‐plus provisions and

avoid signing patent treaties and agreements designed to

facilitate the granting of patents.

KEYWORDS

access to medicines, Agreement on Trade Related Aspects of

Intellectual Property Rights, intellectual property, least developed

country, TRIPS flexibilities, TRIPS‐plus

1|INTRODUCTION

In recent years, Cambodia has experienced rapid economic growth and made huge progress in reducing the number

of people living in poverty.

1

Although currently classified as a least developed country (LDC) by the United Nation

(UN), Cambodia is poised to graduate from LDC status in the coming years.

2

This graduation presents both

opportunities and challenges. One of the most pressing challenges is access to affordable generic medication. As a

member of the World Trade Organization (WTO), the loss of LDC status obliges Cambodia to grant patents for

medicines that meet standard criteria.

3

At the same time, Cambodia has committed to universal health coverage

and explicitly recognises that access to affordable medicines is a precondition to achieving this goal.

4

This paper examines Cambodia's IP laws and regulations to identify provisions which could reduce access to

affordable generic medicines when it starts to grant patents for pharmaceuticals. It systematically compares

Cambodia's IP laws and regulations applicable to patents with those of Thailand and India and makes

recommendations to reform Cambodia's IP legislation to ensure it maximises the flexibilities afforded it in the

Trade Related Aspects of Intellectual Property Rights (TRIPS) Agreement and omits TRIPS‐plus measures.

Section 2of this paper outlines Cambodia's economic situation, its obligations with regard to membership of

the WTO and its current patent law as it applies to pharmaceuticals. Section 3introduces Cambodia's membership

of WTO, its TRIPS obligations, its laws and regulations that govern the granting of patents and its commitments to

Universal Health Coverage. This is followed by an analysis of India's and Thailand's IP systems. Section 4outlines

Cambodia's commitments to Universal Health Coverage. The aims of the study are detailed in Section 5and the

methods are described in Section 6. Section 7results are divided into TRIPS flexibilities in the laws and regulations

of Cambodia, India and Thailand and a targeted literature search that provides examples of the implementation of

TENNI ET AL.

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