In a knowledge economy where knowledge is considered private property and is thus deserving of full protection under the law, Intellectual Property laws play a fundamental role in ensuring stability and predictability. However, it has been suggested that these laws undermine public health by tending to put the cost of essential medicines far beyond the reach of those who desperately need it most.
This dissertation endeavors to examine the tension between intellectual property law and the right of the patient to health care, and to explore the specific ways that the latter can be compromised by the former. It will also look at the possible solutions to overcome this problem and create an intellectual property regime that will put health over profit and patients over patents.
In the "DOHA declaration on TRIPS and Public Health" of 2001, states that were members of the World Trade Organization (WTO) guaranteed that when a country is undergoing a public health crisis, it is not bound by its patents commitments. A consensus was reached that the provisions in the WTO having to with patents should be interpreted liberally in favor of the patient, and in favor of granting access to essential medicines. ...
The two distinct safeguards are (1) parallel importation, and (2) compulsory licensing. By its silence, the TRIPS allows countries to import drugs from another country that is selling it at a lower price. Countries must make domestic legislation in this regard. The US-Singapore Free Trade Agreement, however, is an example of how the US has engaged in scare tactics to pressure developing countries not to pass a parallel important law. Compulsory licensing, on the other hand, permits the government to grant compulsory licenses to particular companies to create generic versions of the drug and arrest a public health crisis. It was found that the introduction of generics competition upon expiry of a patent typically leads to a significant price reduction, often by up to 70 percent.
Methods and Conceptual Framework
This dissertation will first examine the provisions of the TRIPS that involve patents and whether these provisions are sufficient in form and substance to protect patients, or skewed in favor of the corporate interests of multinational pharmaceutical companies. After which, the Doha declaration must be given careful scrutiny as well, in particular the "paragraph six problem". By virtue of paragraph six of the said Declaration, poor countries will lose access to cheaper medicines produced in other countries. This is because the TRIPS provisions providing for production of generics under compulsory licensing require that the medicines produced are used predominantly in the domestic market.
Then, a survey of developing countries and their internal legislation with respect to patents will be made, alongside an analysis of how this legislation has impacted on their public health