Are pharmaceutical patents protected by human rights? (original) (raw)
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AJLHR 3 (2) , 2019
This article analyses the relationship between patent rights and human rights with a view to making a case for broader access to medicines, as a right to health. From a human rights perspective, this paper points to the issues and conflict that arise between patent and human rights. It is argued that patent rights in national laws and the TRIPS Agreement do not exist in a socioeconomic and cultural vacuum; instead, they should be enforced and interpreted with regards to public interest and human rights. It is also argued that human rights to health, provide a significant socioeconomic and cultural framework for the consideration of patent rights and its effect on the right to access medicines. The study adopts a doctrinal methodology approach to examine, and evaluate the issues that have arisen in the context of patent protection of pharmaceuticals and its effect on women's human right to access medicines. It recommends that states adopt a public interest, from a human rights perspective, to address issues of access to medicines in light of patent right.
2019
Each year, billions of people lack adequate access to urgently required medicines, leading to unnecessary suffering and the loss of millions of lives from preventable conditions. One of the main causes of this situation is that individuals living in extreme poverty cannot afford the prices of essential medicines, and the health-care systems of poverty-ridden developing countries are incapable of providing the required medications to their population. Exclusive patent rights contribute to the severity of this situation by providing the legal frameworks which enable pharmaceutical corporations to charge exorbitant prices for their patented drugs. Therefore, the global introduction of the patentability of pharmaceutical products under the WTO's TRIPS Agreement constitutes one of the main threats to the realisation of the Right to Health in developing countries. This thesis addresses conflicting provisions of the human right to health and patent rights under international trade agre...
Stato, Chiese e Pluralismo Confessionale, 2017
Summary: 1. Pharmaceutical patents, the access to essential medicines and the question of innovation - 2. The actual and/or potential between the rights of inventors, international human rights law, trade rules and public health. The everlasting controversy on the allegedly adverse impact of intellectual property protection on access to medicines and health technologies - 3. Are human rights and intellectual property law really in conflict? A relation of interpretation, not of conflict - 4. Conclusions.
2017
When referring to this work, full bibliographic details including the author, title, awarding institution and date of the thesis must be given. "Knowledge is like a candle. Even as it lights a new candle, the strength of the original flame is not diminished."-Thomas Jefferson CHAPTER 1. INTRODUCTION. FRAMING A NEW METHOLODOGICAL APPROACH TO INTELLECTUAL PROPERTY. Since the first synthesized drug chloral hydrate in 1869, our world has experienced a fast growing of drugs to prevent, cure and treat diseases. We live today in a world of drugs. Drugs for pain, drugs for disease, drugs for allergies, drugs for pleasure, drugs for mental health and even drugs for sex, sadness and unhappiness. In order to treat symptoms and diseases, conventional medicine is mostly based on radiation, surgery and sophisticated drugs that have been developed designed or synthesized in the laboratory or purified from nature. Conventional medicine is also named allopathic medicine. This term was first coined by Dr. Samuel Hahnemann in the late 18th century. It derives from the Greek "allo" meaning "other" and is based on the theory that symptoms should be treated by substances that suppress symptoms. Other than drugs to combat, prevent or cure symptoms, pharmaceutical industry is also focused on developing diagnostic tools which can reveal the presence of a disease even before the patient experiences symptoms. These diagnostics tools can be lifesaving and thus have an extraordinary value. Leaving apart the controversies between conventional medicine and the so-called homeopathic medicine, pharmaceutical drugs play an important role in the progress of human beings by increasing their life expectancy and health as long as improving their lives. Thanks to the development of new drugs, people are now free from many distresses and diseases affecting our ancestors in the recent past. In this sense, if we adopt the definition of health contained in the preamble to the Constitution of the World Health Organization (WHO), where health is conceptualized as "a state of 1 This gradual shrinking of maneuverability is mainly due to: the decline of their public revenues derived from reduced tariffs; its international commitments; and the international financial markets which dramatically constrain domestic policy space and make national governments unable to solve and compensate those "market failures" by putting in place public policies
Patents for Drugs and the Right to Development in International Law
Law and Development Review, 2015
This article explores the connection of health to human and socio-economic development and the protection of pharmaceutical patents. It examines the concept of development and the right to development in international law in the context of access to medicines and patents protection. The provisions of the General Agreement on Tariffs and Trade (GATT) and the Agreement on Trade Related aspects of Intellectual Property Rights (TRIPS Agreement) that are significant to the pursuit of development are discussed. The article argues that there is a cognisable right to development in international law that is well recognised in international trade law and the pursuit of development should be duly taken into account in the negotiation and implementation of trade and IP agreements. The article highlights the potential danger in eroding the flexibilities in the TRIPS Agreement through the negotiation of free trade agreements and emphasises the need for IP and trade agreements to sufficiently acc...
Patent Rights and Human Rights: Exploring their Relationships
The Journal of World Intellectual Property, 2007
The assessment of the relationship between patent rights and human rights has resulted in several tentative findings, such as by the UN Sub-Commission on the Promotion and Protection of Human Rights, that there are ''apparent'' or ''actual or potential'' conflicts. Also the World Intellectual Property Organization says that ''conflicts may exist'' between the two. This article, which is based on a Ph.D. dissertation on the right to food and the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement), analyzes the relationship between the two, based on an established understanding of conflict in international law, namely incompatible obligations. Also another level of conflict is introduced, namely conflict on the level of prescribed measures in one treaty which impedes the taking of measures prescribed by another treaty. Finally, the article assesses conflict on the level of impact. The findings are that strict legal conflict between the two is difficult to establish, but that there are serious concerns regarding their implementation. Developing states should make use of all the flexibilities that the TRIPS Agreement provides. Keywords conflict between treaties; TRIPS; International Covenant on Economic, Social and Cultural Rights; the right to adequate food After various UN bodies addressed the relationship between intellectual property rights and human rights in 2000 and 2001 (Chapman, 2002), 1 similar energy was not exercised in subsequent years. Recently, however, there are new initiatives that merit attention. From the observations made some years back, that there were ''apparent conflicts'' (UN, 2000, paragraph 2) or ''actual or potential conflicts'' (UN, 2001a, preambular paragraph 11), these new initiatives more appropriately analyze the relationship between the two sets of norms. This article seeks to contribute to a more analytical insight into these relationships, with specific emphasis on the right to food and patent and plant breeders' rights, 2 as recognized in the International Covenant on Economic, Social and Cultural Rights (ICESCR) 3 and the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement). 4 By this approach, the relationships between treaties, both whether they conflict and whether they can be mutually supportive, are analyzed with greater precision. Patent protection is the category of intellectual property rights that has been considered the most problematic in relation to human rights: ''Patents restrict the actual usage of an idea (in making a physical object), while copyrights restrict only copying an expression of an idea'' (Hettinger, 1989, p. 52, emphasis added). At the same time, others emphasize that ''[a]n inventor's patent does not deprive
Today, along with the relative expansion of public health around the world, various diseases such as AIDS, malaria, etc. are increasing in human societies. In this regard, the pharmaceutical industry is one of the most important industries that should be supported so that the inventors of new drugs have enough motivation to produce more effective drugs. On the other hand, the undeniable benefits of supporting pharmaceutical inventions pose a serious threat to developing and less developed countries, and may endanger the public health of these societies. In such situation, we should know which of these two principles is preferable to other and should be given priority: Public health as a basic human right or protection of pharmaceutical patents as an exclusive right of its owners? One of the most important issues discussed directly and indirectly in the World Trade Organization is ”public health”, especially the drug trade and the protection of pharmaceutical patents, and this organization has always protected the rights of drug inventors to maintain a balance between public health and freedom of access to medicine. Therefore, any legal system that wants to join this organization may face problems due to these two issues. This study aims to investigate the conditions and challenges of supporting pharmaceutical patents in legal systems in case of accession to the World Trade Organization.