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Conflict Or Flexibility? Pharmaceutical Patents, Access to Medicines and the Role of Compulsory Licences

Länsisyrjä, Björn (2008)
Department of Law
Abstract
International law related to patents, on the one side, and human rights, on the other, both constitute interesting areas of law on their own. From time-to time the two distinct fields of international law intertwine. A tragic but highly relevant example is the ongoing HIV/AIDS epidemic. The core of law-related considerations of the HIV/AIDS epidemic consists of specific parts of the two fields, namely, pharmaceutical patents and access to medicines, as a part of the right to health. This thesis examines this specific relationship between the two areas of international law. Although pharmaceutical patents are mainly related to economic justifications and access to medicines to social justifications, both form justified and desirable parts... (More)
International law related to patents, on the one side, and human rights, on the other, both constitute interesting areas of law on their own. From time-to time the two distinct fields of international law intertwine. A tragic but highly relevant example is the ongoing HIV/AIDS epidemic. The core of law-related considerations of the HIV/AIDS epidemic consists of specific parts of the two fields, namely, pharmaceutical patents and access to medicines, as a part of the right to health. This thesis examines this specific relationship between the two areas of international law. Although pharmaceutical patents are mainly related to economic justifications and access to medicines to social justifications, both form justified and desirable parts of international law. As a result, the idea has been presented that the relationship between these two fields amounts to a conflict of norms. Some contributors to the debate on the relationship tend to get stuck on a conflict-focused approach. This thesis attempts to consider the relationship from a flexibility approach. Fundamental to such an approach are the built-in flexibilities of the present international system for patent protection. One such flexibility is examined in detail, namely, compulsory licences. Although the practice of compulsory licences has been rather limited up until now, it is suggested that it is a flexibility with great potential for easing the relationship between pharmaceutical patents and access to medicines. The use exercised so far suggests that developing countries taking an interest in it can be divided into an A-team and a B-team. A-team States are those who have domestic manufacturing capacity and B-team States those who have insufficient or no capacity. A-team States so far appear to be far better off as they can use the threat of compulsory licences when negotiating prices for patented medicines to get significant price reductions. In any case, several roadblocks appear to stand in the way of both A-team and B-team States trying to make use of the flexibility at present. These come in the form of both internal barriers such as lacking 'health and intellectual property infrastructure' and external barriers such as trade and diplomatic pressure from States with a strong interest in the pharmaceutical industry. In conclusion, it is argued that the flexibility approach needs to be combined with an understanding of the necessity of political commitment. In other words, States need to start taking their international obligations seriously. This holds true both for obligations following from the patent framework, including the full realization of flexibilities such as compulsory licences, and the human rights framework, including access to medicines. A three-step agenda is presented as a suggestion on the direction that future development on the relationship should be heading. First, the importance of both patents and the related international instruments, on the one side, and access to medicines and its instruments, on the other, must be fully recognised by its Member States. Secondly, there is a need to promote and create awareness about the flexibilities to the TRIPS Agreement in general and compulsory licences in particular. Thirdly, international cooperation and assistance must be exercised on a much wider scale than what is seen today. (Less)
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author
Länsisyrjä, Björn
supervisor
organization
year
type
H1 - Master's Degree (One Year)
subject
keywords
International Human Rights Law and Intellectual Property Rights
language
English
id
1555246
date added to LUP
2010-03-08 15:23:09
date last changed
2010-03-08 15:23:09
@misc{1555246,
  abstract     = {International law related to patents, on the one side, and human rights, on the other, both constitute interesting areas of law on their own. From time-to time the two distinct fields of international law intertwine. A tragic but highly relevant example is the ongoing HIV/AIDS epidemic. The core of law-related considerations of the HIV/AIDS epidemic consists of specific parts of the two fields, namely, pharmaceutical patents and access to medicines, as a part of the right to health. This thesis examines this specific relationship between the two areas of international law. Although pharmaceutical patents are mainly related to economic justifications and access to medicines to social justifications, both form justified and desirable parts of international law. As a result, the idea has been presented that the relationship between these two fields amounts to a conflict of norms. Some contributors to the debate on the relationship tend to get stuck on a conflict-focused approach. This thesis attempts to consider the relationship from a flexibility approach. Fundamental to such an approach are the built-in flexibilities of the present international system for patent protection. One such flexibility is examined in detail, namely, compulsory licences. Although the practice of compulsory licences has been rather limited up until now, it is suggested that it is a flexibility with great potential for easing the relationship between pharmaceutical patents and access to medicines. The use exercised so far suggests that developing countries taking an interest in it can be divided into an A-team and a B-team. A-team States are those who have domestic manufacturing capacity and B-team States those who have insufficient or no capacity. A-team States so far appear to be far better off as they can use the threat of compulsory licences when negotiating prices for patented medicines to get significant price reductions. In any case, several roadblocks appear to stand in the way of both A-team and B-team States trying to make use of the flexibility at present. These come in the form of both internal barriers such as lacking 'health and intellectual property infrastructure' and external barriers such as trade and diplomatic pressure from States with a strong interest in the pharmaceutical industry. In conclusion, it is argued that the flexibility approach needs to be combined with an understanding of the necessity of political commitment. In other words, States need to start taking their international obligations seriously. This holds true both for obligations following from the patent framework, including the full realization of flexibilities such as compulsory licences, and the human rights framework, including access to medicines. A three-step agenda is presented as a suggestion on the direction that future development on the relationship should be heading. First, the importance of both patents and the related international instruments, on the one side, and access to medicines and its instruments, on the other, must be fully recognised by its Member States. Secondly, there is a need to promote and create awareness about the flexibilities to the TRIPS Agreement in general and compulsory licences in particular. Thirdly, international cooperation and assistance must be exercised on a much wider scale than what is seen today.},
  author       = {Länsisyrjä, Björn},
  keyword      = {International Human Rights Law and Intellectual Property Rights},
  language     = {eng},
  note         = {Student Paper},
  title        = {Conflict Or Flexibility? Pharmaceutical Patents, Access to Medicines and the Role of Compulsory Licences},
  year         = {2008},
}