TRIPS and Special & Differential Treatment – Revisiting the Case for Derogations in Applying Patent Protection for Pharmaceuticals in Developing Count

In this paper we apply an implicit threshold approach, malleable to the principle of graduation, toidentify countries that should benefit from derogations from WTO TRIPS commitments forpharmaceutical patents under the tenets of Special and Differential Treatment. This is based on theidentification of four broad constraints loosely classified as; economic constraints; access topharmaceuticals; capacity constraints; and incidence of health outcomes. We identify these by meansof analytical criteria and create a composite index that ranks countries according to the observedconstraints which delimit the capabilities and desirability of implementing TRIPs disciplines. Wediscuss the use of negotiated weights and thresholds in determining participation and graduation intogeneral provisions of the agreement. It follows that countries below the chosen threshold should beexempt from these hence receiving Special and Differential Treatment.