Judicial Lawmaking and the Influence of Comparative Law
Studies in Comparative Law and Legal Culture series
Edited by John O. Haley and Toshiko Takenaka
Chapter 5.4: Public health and pharmaceutical patent protection in Indonesia: The implementation of the TRIPS safeguards and other strategies to increase access to essential medicines
In 1998 Michael A. Heller introduced the term “tragedy of the anticommons” to describe the situation in which people have limited access to a scarce resource. Even though Heller focuses on property law in general, many scholars now use that term in other areas of law, including intellectual property law. The exclusive right given to an owner of intellectual property to exclude others from using that property appears to fit with Heller’s description. An exclusive right often creates tension between the owner and members of society whose access to the intellectual property becomes limited by law. The tension between private ownership rights and public access is a key feature of pharmaceutical patents. Protection for medicines, it is argued, is likely to affect access to medicines for people in developing countries. Both before and after the TRIPS Agreement, pharmaceutical patent protection has been a controversial issue within a number of countries. In particular, in the post-TRIPS era, patent protection for medicines has been a concern among WTO members because TRIPS requires members to provide patent protection for processes and products relating to pharmaceuticals. These include protection for pharmaceutical compositions, therapeutic uses, polymorphs, active ingredients, related forms and pharmaceutical processes. Many developing countries have objected to the inclusion of patent protection for pharmaceuticals within the WTO framework for three primary reasons. First, some developing countries believe that access to medicines is a human right. They worry that protection will restrict access to essential medicines.
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