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Medical Patents and the Right to Health – From Monopoly Control to Open Access Innovation and Provision of Medicines
Cullet, Philippe | Yuanquiong, Hu
German Yearbook of International Law, Vol. 61 (2018), Iss. 1 : pp. 153–182
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Philippe Cullet is Professor of international and environmental law at SOAS, University of London.
Hu Yuanquiong is a researcher of law, a member of Law, Environment and Development Centre (LEDC) of SOAS, University of London, and a Teaching Fellow at Durham Law School, Durham University.
Abstract
The coming into force of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) in the mid-1990s led to a massive strengthening of intellectual property rights in the global South. This was particularly controversial concerning restrictions on access to medicines and set the stage for spirited debates concerning the impacts of medical patents on the realisation of the right to health in the context of the HIV/AIDS crisis. Efforts to reconcile the right to health and medical patents led to a minor amendment of the TRIPS Agreement that has hardly had any impact on the ground while further strengthening of patent protection was obtained, for instance, through bilateral agreements. In the human rights field, attempts to strengthen the protection afforded by the right to health have been partly diluted by efforts to strengthen the claims of inventors under human rights law. At this juncture, two main elements need to be taken forward. The first is to revisit our understanding of the human right to health to ensure, for instance, that there is no compromise in the liberal promise of universality, in particular access to medicines for every person who needs them. The second element is the need to rethink the way in which legal incentives are given to innovate. In a context where patents are the only recognised legal incentive to innovate in the medical field, this discourages the development of medicines for diseases that may affect mostly poor patients, since companies need to recoup their investments. Further, it militates against giving attention to other systems of medicine whose innovations can usually not be protected under the patent system, even where treatments are effective.
Table of Contents
| Section Title | Page | Action | Price |
|---|---|---|---|
| Philippe Cullet / Hu Yuanquiong: Medical Patents and the Right to Health – From Monopoly Control to Open Access Innovation and Provision of Medicines | 1 | ||
| Abstract | 1 | ||
| I. Introduction | 1 | ||
| II. Legal Frameworks to Ensure the Development, Manufacture and Access to Medicines | 5 | ||
| A. Patents and Regulatory Framework Governing Medicines | 5 | ||
| 1. TRIPS Flexibilities and TRIPS-Plus | 7 | ||
| 2. Exclusivity Derived From Regulatory Laws on Medicines | 8 | ||
| B. Human Right to Health and Access to Medicines | 9 | ||
| C. Limited Options for Reconciling the Different Options | 1 | ||
| III. Regulatory Developments Since the Beginning of the Century | 1 | ||
| A. From the TRIPS Agreement to the Doha Health Declaration and Beyond: Limited Attempts to Tame the Patent Regime | 1 | ||
| B. Steps to Foster the Realisation of the Right to Health | 1 | ||
| C. Authors’ Rights, Right to Benefit from Science and the Right to Health: New Battlegrounds in Human Rights | 1 | ||
| D. Shortcomings of Medical Innovation and Alternative Pathways | 2 | ||
| IV. Towards Prioritising Access and Innovation to Realise the Right to Health | 2 | ||
| A. Right to Health: Rethinking the Obligations of the Duty Holders | 2 | ||
| 1. Duty of State to Fund Research, Manufacture, or Regulate Prices | 2 | ||
| 2. Sharing Duties and the Private Sector: Rethinking Obligations of Duty Holders in International Law | 2 | ||
| B. Redefining Openness in Medical Innovation to Ensure Access to Medicines for All | 2 | ||
| C. Preferential Treatment: Ensuring Provision of Necessary Medicines in the Global South | 2 | ||
| V. Conclusion | 2 |