DOI: 10.11648/j.ijls.20260903.20 ISSN: 2640-1908

Intellectual Property Rights (Patent Protection) and “Compulsory Licensing” in the Pharmaceutical Industry in “The Gambia” – Its Legal Implications

Nwele Obasi, Nwele Orjiugo, Fabunmi Oluwadare, Alaoudine Badjie
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The intersection of Intellectual Property Rights (IPR) and public health constitutes one of the most contentious normative conflicts in international trade law. For Least Developed Countries (LDCs) like The Gambia, the harmonisation of patent standards under the World Trade Organization’s TRIPS Agreement presents a formidable challenge: how to incentivise innovation without rendering essential medicines unaffordable for the populace. This article examines the legal regime governing pharmaceutical patents in The Gambia, with a specific focus on the mechanism of Compulsory Licensing as a safeguard for public health. This study examines the balancing of innovation and access within the legal Analysis of Patent Protection and Compulsory Licensing in The Gambia’s Pharmaceutical Sector. Adopting a doctrinal and comparative legal research methodology, this study analyses the text and application of The Gambia’s Industrial Property Act 2010 and the Medicines and Related Products Act 2014. It evaluates the domestic domestication of international obligations, contrasting The Gambia’s statutory framework against the flexibilities authorised by the TRIPS Agreement and the Doha Declaration on the TRIPS Agreement and Public Health (2001). Furthermore, the research draws comparative lessons from jurisdictions such as India and South Africa to highlight best practices in balancing proprietary rights with human rights obligations. Objectively, the research establishes that while The Gambia possesses the statutory architecture to issue Compulsory Licenses – (authorisations to use a patent without the holder's consent), the practical utilisation of this tool is non-existent. Subjectively, the article argues that the current legal environment is characterised by "legislative dormancy - Nwele 2019." The fear of trade retaliation and a lack of administrative expertise have created a "TRIPS-plus" environment where patent protection is prioritised over the "Right to Health" enshrined in international human rights covenants. The findings reveal a critical gap: The Gambia, as a part of Least Developed Countries, has failed to fully leverage the WTO transition period (currently extended to 2034) which exempts it from granting pharmaceutical patents. Instead, through membership in regional bodies like ARIPO, The Gambia inadvertently validates patents that block generic competition. Additionally, the study finds that the lack of domestic manufacturing capacity renders standard Compulsory Licensing ineffective unless coupled with the specific import mechanisms provided under TRIPS Article 31bis. The article concludes that for Compulsory Licensing to move from a theoretical legal provision to a practical public health tool, The Gambia must reform its Industrial Property Act to explicitly define "national emergency" broadly and streamline the administrative procedures for granting licenses. It advocates for a legal paradigm shift that views access to medicines not merely as a trade exception, but as a sovereign constitutional imperative.

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