Brazil’s Recent Threat on Abbott’s Patent: Resolution or Retaliation

Bjornberg, Jennifer | January 1, 2006

In June 2005, Brazil threatened to infringe the patent of an anti-AIDS medication, Kaletra, patented and produced by a U.S. based pharmaceutical company, Abbott Laboratories. The resulting controversy necessarily implicated the World Trade Organization’s Agreement on Trade Related Aspects of Intellectual Property (“TRIPS Agreement”) as Brazil was a Member Nation under the agreement and Abbott’s product was protected under that agreement. Ultimately, the threat came to a voluntary resolution between both parties, but the dispute raised a number of unique questions relating to international trade and public health concerns. This article will discuss the recent controversy between Abbott and Brazil and its resolution in light of the TRIPS Agreement. The article will also discuss amendments to and interpretations of the TRIPS Agreement. Part II will describe the background and development of the TRIPS Agreement as applied to the international pharmaceutical industry, specifically, pharmaceutical patent protection. This section will also outline and discuss the relevant articles in the TRIPS Agreement and related amendments, and will briefly address the current ability of developing countries to utilize TRIPS Agreement provisions to break pharmaceutical patents. Part III will delve into the events surrounding and leading up to the Kaletra controversy with an emphasis on the positions of both Brazil and Abbott. Part IV will use the TRIPS Agreement provisions discussed in Part II to support the arguments of both Brazil and Abbott. This section will also include an analysis of the policy arguments for and against international pharmaceutical patent protection. Part V will discuss the resolution of the dispute between Brazil and Abbott and the events contributing to the agreement between both parties. It will also analyze the relative position of each party following the resolution, weighing the costs and benefits to each. Part V will also explore the larger effects of the resolution between Brazil and Abbott on the developing world. Finally, Part VI will briefly conclude on the resulting relationship between the recent events and the TRIPS Agreement.