The New Intellectual Property of Health

The New Intellectual Property of Health

Beyond Plain Packaging

Edited by Alberto Alemanno and Enrico Bonadio

This timely book provides the first legal and policy analysis of the intellectual property (IP) aspects of a rapidly-growing category of regulatory measures affecting the presentation and advertising of certain health-related goods, namely tobacco, alcohol, food, and pharmaceuticals.

Chapter 9: Investment disputes, pharmaceutical patents and health-related goods

Valentina Vadi

Subjects: law - academic, health law, intellectual property law


International investment law has furthered the protection of pharmaceutical patents, considering it a form of investment and providing patent owners with access to investor–state arbitration. Patent owners can and do use investment treaty arbitration to challenge alleged infringements of patent rights by governments or by third parties under a host government’s jurisdiction. Have arbitral tribunals taken public health considerations into account when adjudicating pharmaceutical patent-related cases? If so, have they considered public health either as an exception to investment treaty standards or as a part of the interpretation of the same standards? What techniques are available to avoid regime collisions between international investment law and other fields including public health law? This study offers a primer on recent investment disputes concerning pharmaceuticals. The underlying assumptions of this chapter are that adjudication is a mode of governance and it has a fundamental importance with regard to the concrete implementation of a given legal regime. The chapter aims to examine the existing investor–state arbitrations concerning pharmaceuticals and to critically assess their potential impact on public health.

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