The current legislative proposals do not meet the TRIPS conditions because they fail to require prior efforts to obtain reasonable terms, among other requirements. However, by closely tracking the language in TRIPS, it should be possible to draft legislation that allows use without authorization of the patent holder.

States are considering ways to cope with high prices. It might be wise not to dismiss compulsory drug legislation too quickly, but to consider its effect on public opinion, an area where the pharma industry is losing ground.

Tamsen Valoir is a partner in the Houston office of Baker & McKenzie. She can be reached at tamsen.valoir@bakernet.com