Patent Rights, Access to Medicines, and the Justiciability of the Right to Health in Kenya, South Africa and India (original) (raw)

Patents and access to drugs in developing countries: an ethical analysis

Developing World Bioethics, 2004

More than a third of the world's population has no access to essential drugs. More than half of this group of people live in the poorest regions of Africa and Asia. Several factors determine the accessibility of drugs in developing countries. Hardly any medicines for tropical diseases are being developed, but even existing drugs are often not available to the patients who need them.

Incorporating a right to health perspective into the resolution of patent law disputes

Health and human rights, 2013

This article adopts the view that the courts in developing countries can play an important role in improving access to medicines in their countries if they incorporate a right to health perspective when adjudicating patent cases involving pharmaceutical products. The article argues that, since patent rights are not human rights, they should not be allowed to trump the right to health. The paper examines two notable cases decided by the courts in Kenya that illustrate the crucial role that incorporating a right to health perspective can play in improving access to medicines. Finally, the paper provides five reasons why courts in developing countries cannot afford to ignore the right to health when adjudicating cases involving patent rights on pharmaceutical products.

Niada, Laura, The human right to medicines and patents in sub-Saharan Africa: Some critical remarks, The International Journal of Human Rights, Volume 15, Number 5, June 2011 , pp. 700-727(28)

Sub-Saharan Africa is affected by the largest burden of diseases in the world and by extremely low access to medicines. The affordability of medicines can be severely reduced by the registration of patents on these products. On the other hand, patent protection can increase access to innovative medicines and support other rights, interests, liberties and needs in society. In effect, most African countries provide patent protection for pharmaceutical products. This paper examines whether international human rights law, and in particular a „human right to medicines‟, can guide and redress the problematic issues of the patentability of pharmaceutical products in sub-Saharan Africa. Together with the analysis of the law, it discusses whether, normatively, the problem of patents on medicines in sub-Saharan Africa ought to be solved by utilising a human rights framework. The enquiry identifies several strong limitations of human rights law in addressing the problem of access to medicines in sub-Saharan Africa, and presents the concern that human rights may serve biopower rather than function as an emancipatory tool. The relevance and merits of this argument are grounded on different instances of critical-analytical research, including interdisciplinary and empirical research on the operationalisation and implementation of human rights norms relating to access to medicines as well as theoretical insights from socio-legal studies, in particular drawn from Luhmann‟s social systems theory and Foucault‟s theory of biopower.

The patentability of medical products : identifying responsibilities of pharmaceutical corporations towards the right to health

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...

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...

Intellectual Property and Access to Essential Pharmaceuticals: Recent Law and Policy Reforms in the Southern Africa Development Community Region

Maryland Journal of International Law, 2016

I. INTRODUCTION: BACKGROUND AND CONTEXT The advent of the 1994 Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) 1 has given rise to an unprecedented and polarized debate concerning the impact of intellectual property rights (IPRs) on access to essential pharmaceuticals. This debate has focused on the patent system and the role it plays in determining the affordability and accessibility of pharmaceuticals, especially in developing countries. The debate has largely been between those who contend that patents adversely affect access to essential pharmaceuticals and those who claim that patents are necessary and essential for the promotion of biomedical research © 2016 Chikosa Banda. † LLM, LLB Faculty of Law, University of Malawi Chancellor College of Law. I would like to acknowledge and thank Professors Lionel Bently and Dr. Kathleen Liddell of the University of Cambridge for supervising my doctoral research, and the Wellcome Trust who funded my research. I would also like to acknowledge Dr. Wilbert Bannenberg from HERA, whom I have worked with on SADC IP issues, and thank Professor Peter Danchin and the University of Maryland Carey School of Law for inviting me to participate and collaborate on the symposium Roundtable on Clinical Trials and Access to Essential Medicines in African Countries that took place on Oct. 29-30, 2015. Additionally, I would like to thank the editorial staff of the Maryland Journal of International Law for their editorial assistance and hard work on this piece. Finally, I would also like to acknowledge my wife Tiffany and children, Likondwa and Chimangu, for their love and support. * The Editors and the Maryland Journal of International Law thank the author for his contribution to Volume 31 and note that author is solely responsibility for the content and accuracy of references published. 1.

RE-EVALUATING THE RELATIONSHIP BETWEEN PATENT RIGHTS AND HUMAN RIGHTS FOR THE ENHANCEMENT OF ACCESS TO ESSENTIAL MEDICINES

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.

Pharmaceutical patents and access to essential medicines in sub-Saharan Africa

African Journal of …, 2011

Rights (TRIPS) has reawakened old arguments over the impact of the intellectual property (IP) system on public access to essential medicines. As used here, essential medicines are those needed in symptom management, palliative care, and in the treatment of infections, such as human immunodeficiency virus (HIV), malaria, tuberculosis, and sleeping sickness in places like sub-Saharan Africa. Some argue that patents will further inhibit access to these medicines in sub-Saharan Africa. Others, however, argue the opposite. The latter maintain that patent protection under TRIPS can promote the growth of the pharmaceutical industry in places like sub-Saharan Africa. Moreover, they assert that pharmaceutical patents are not responsible for the limited access to essential medicines in sub-Saharan Africa. Instead, they trace the problem of access to non-patent factors, such as poverty, the lack of supportive infrastructure, and poor governance. This paper set out to assess these contrasting arguments, with a view to determining the actual impact that pharmaceutical patents may be having on access to essential medicines in sub-Saharan Africa. Keyword search of electronic databases was conducted, in addition to a review of relevant literature from print sources. A manual analysis then followed. It was found that, rather than a single set of factors, both patent and nonpatent factors combine to inhibit access to essential medicines in sub-Saharan Africa. It is imperative for sub-Saharan African countries to review current tariff and taxation policies, take steps to improve the supply of vital infrastructure, and strengthen their overall healthcare systems. They should also ensure that their IP systems are supportive of public healthcare needs. Equally important, is that TRIPS and the IP system should be more supportive of sub-Saharan Africa's struggle to bear its disease burden, rather than focusing narrowly on profit maximisation for pharmaceutical companies. Sub-Saharan Africa also needs increased international financing, private-public collaboration in research, and the sharing of benefits in order to cater effectively for the health needs of its citizens.