On Monday, 2 November 2026, Knowledge Ecology International (KEI) delivered the following statement during discussions on exceptions and limitations to patent rights at the 38th session of the WIPO Standing Committee on the Law of Patents (SCP).
This intervention relates to document SCP/19/6, regarding exceptions and limitations to patent rights.
There is a persistent underrecognition of policy space afforded under Part III of the TRIPS Agreement, which, when properly understood, provides the least restrictive, most flexible and most commonly used mechanism for a government to permit the non-voluntary use of a patented invention.
Considerable international attention has been directed toward injunctions in the context of standard-essential patents (SEPs), but significantly less focus has been given to limitations on injunctive relief in other critical sectors, particularly medical technologies and public health.
The TRIPS Agreement permits WTO members to have limitations and exceptions to the granting of injunctions as a remedy to infringement. This applies to every category of intellectual property covered by Part II of the Agreement, including copyright, industrial designs, and trademarks.
No WTO Member is required to make injunctions automatic or even available when infringement occurs. Article 44.1 states that the availability of an injunction by a court is a discretionary remedy. Article 44.2 goes further, allowing WTO members to eliminate the availability of injunctions when compensation or remuneration is available.
KEI asked SCP members to direct the WIPO Secretariat to undertake the following actions:
- Prepare a draft reference document on Article 44 limitations on remedies for infringement of patented inventions, for submission to SCP/39; and
- organize a technical workshop on state practice concerning national discretion to grant or eliminate injunctions as a remedy for infringement of patented inventions, with a focus on medical technologies at SCP/40.