Impact of Pharmaceutical Patents on Access to Medicines in Developing Countries

Abstract

ABSTRACT

Impact of Pharmaceutical Patents on Access to Medicines in

Developing Countries

The paradox of Human Rights and Patent Law has emerged ever since the member nations of World Trade Organization signed the TRIPS agreement of 1995, transforming the International Intellectual Property system that resulted in curtailment of traditional capacity of suppliers of public goods, such as health care and nutrition, to address priority needs of less affluent members of the society, the developing countries in particular. Profit motivated pharmaceutical companies are pursuing patent protection of the drugs they produce in many developing countries which had not previously allowed product patents on life saving drugs. This implies that with the existence of monopoly rights conferred by patent protection, patients are refrained from access to life saving drugs that entails the growing concern of international community. Albeit, many developing countries have started initiating. a practice of implementing minimum standard of such protection for chemical pharmaceutical products with the resonance of a larger mass by virtue of their recent grants of compulsory li.cence and parallel imports, individual's right to health, especially the right to access affordable medicines are still persistently sacrificed. In light of the above persistent problem, this paper proposes that by applying human rights approach to Intellectual Property Regime the state would be provided an objective standard to balance the conflicts between intellectual property rights (patent rights in particular for the purpose of this paper) and health rights. It furthermore attempts to develop a mechanism for the developing and developed countries to refuse unjustified patent protection where fundamental right to health is at stake, and to prevent the TRIPS exemption from being misused when the vague notion of public health is at stake. Therefore, the main theme of this paper is to analyses if the present patent regime concerning pharmaceuticals is consistent with right to health of the world community, as recognised by

National Law School of India University, Bangalore Page 3

Impact of Pharmaceutical Patents on Access to Medicines in

Developing Countries

the International Human Rights documents, with specific reference to developing and least developed countries. In the similar context the paper shall begin with the framework of TRIPS Agreement which lays the basic standards of patentability for all the member countries to WTO and focuses on the limited access to medicines in developing and underdeveloped countries as a natural outcome of these standards and the external pressure from the developed and industrialized countries on further more stricter standards of patenting; and thereby concludes with an extensive evaluation of practices and implementing mechanisms to balance the economic interest of the pharmaceutical companies on one hand and the greater public interest of developing countries of right to health on the other.