Despite the foregoing observations, intellectual property rights could still serve as a very useful tool to ensure, for example, benefit-sharing through joint ownership and the sharing of royalties arising from the exploitation of patents.

• The Agreement allows members to provide limited exceptions to the exclusive rights [conferred by a patent], provided that such exceptions do not unreasonably conflict with a normal exploitation of the patent and do not unreasonably prejudice the legitimate interests of the patent owner (article 30);

Intellectual Property Law (1996) Brazil, No. 9,279, article 71 of which states: “In cases of national emergency or public interest, declared in an act of the Federal Authorities, insofar as the patentee or his licensee does not meet such demand, a temporary non-exclusive compulsory license for the exploitation of the patent may be granted, without prejudice to the rights of the respective patentee.”

Many IPR laws also incorporate remedies which address abuse of IPRs, without this being subject to competition law tests; this is particularly the case in patent laws, which often provide for the grant of compulsory licences on such grounds as failure to supply the needs of the market to an adequate extent or on reasonable terms, or to allow exploitation of dependent patents.

The TRIPS Agreement, article 30, states that “Members may provide limited exceptions to the exclusive rights conferred by a patent, provided that such exceptions do not unreasonably conflict with a normal exploitation of the patent and do not unreasonably prejudice the legitimate interests of the patent owner, taking account of the legitimate interests of third parties.” The provision is generally accepted as including the use of patents for research purposes.