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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. |
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