A Handbook of Contemporary Research
Research Handbooks in Intellectual Property series
Edited by Toshiko Takenka
Chapter 24: Current Controversies Concerning Patent Rights and Public Health in a World of International Norms
Cynthia M. Ho 1 Introduction Patents are often touted as important and even essential to promoting innovation in the area of drug discovery, but the potential benefits may be illusory or even non-existent. In particular, to the extent that patent rights entitle their owner to exclude others from the making of the invention, the patent owner may price a patented drug at levels that are beyond what some can afford. Pharmaceutical companies that obtain patents emphasize that patents promote research that helps all of society and that higher costs for patented drugs are an unfortunate, but necessary reality to funding expensive research and development of drugs. Such companies point to sunk costs such as extensive clinical testing of drugs, including those that never reach the marketplace. Human rights advocates and developing countries, on the other hand, emphasize that giving corporations rights to control access to medicine is inhumane where due to patent protection, treatment is available, but not affordable. Can patent rights be reconciled with public health? Technically, every nation has the ability to decide whether or not to grant patents, including patents on pharmaceutical compounds. Historically, many nations elected not to provide any patents, or only limited patent rights as one method to promote greater access to medicine. However, while this option technically still exists, it is increasingly an illusory option in light of other realities. In particular, many countries of the world, including less developed countries, are members of the World Trade Organization (WTO).1 One of the...
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