Unlike other intellectual property agreements, TRIPS has an effective enforcement mechanism. States can be disciplined by the WTO dispute settlement mechanism. Article 40 of the TRIPS Agreement provides that certain practices or conditions relating to intellectual property rights that restrict competition may have negative effects on trade and impede the transfer and dissemination of technology (paragraph 1). In accordance with the other provisions of the Agreement, Member States may take appropriate measures to prevent or control abusive and anti-competitive IPR licensing practices (paragraph 2). This gap is accentuated by taking into account three key factors. First, the revolutionary step of TRIPS negotiators to include comprehensive memoranda of understanding in the operational text. Secondly, the strengthening of these provisions in the 2001 Doha Declaration on TRIPS and Public Health. Finally, the literal repetition of these provisions in other international intellectual property instruments, including the Trans-Pacific Partnership, the Anti-Counterfeiting Trade Agreement and WIPO`s Development Program. Taken together, these factors require further study of the meaning and application of Articles 7 and 8. This article aims to contribute to this study by exposing the different elements of each provision to a detailed analysis of the text. Necessity, adequacy, consistency and good faith will prove to be legal principles set out in Articles 7 and 8. Moreover, these provisions recognise a central principle of interpretation – that of national regulatory autonomy. According to the WTO, the agreement attempts to strike a balance between long-term social benefits to society by increasing innovation and short-term costs to society due to lack of access to the invention (World Trade Organization: Protection and Enforcement).
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