Competition Law and Patents

Competition Law and Patents

A Follow-on Innovation Perspective in the Biopharmaceutical Industry

New Horizons in Competition Law and Economics series

Irina Haracoglou

Using the example of research tools in biopharmaceutical research and innovation, this book examines the complexities of the relationship between two fundamental areas of law and policy – intellectual property rights and competition law. It addresses a question that is certain to become paramount in other industries also: how to strike the balance between initial and follow-on innovation so as to ensure that access to ‘essential’ research tools (or other fundamental elements to follow-on innovation) is not impeded. The book concludes by suggesting how competition law could be used to complement the patent balance.

Chapter 4: The Right to Health as an Interpretive Principle of Patent Law

Irina Haracoglou

Subjects: economics and finance, competition policy, law - academic, biotechnology and pharmaceutical law, competition and antitrust law, intellectual property law


In a state of law, the right to life, and in consequence the right to health, receives particular attention. Any economic criterion that pretends to annul the exercise of such rights must cede in importance … because without the right to life all of the other rights are useless … Of what use are all other rights and guarantees, the institutions and programs, the advantages and benefits of our system of liberties, if even one person cannot count on having the rights to health and life guaranteed? (Alvarez v Caja Costarricense de Seguro Social, Exp. 5778-V-97, No. 5934-97, Sala Constitucional de la Corte Suprema de Justicia de Costa Rica) 4.1 Introduction One of the particularities of the biopharmaceutical industry is that human rights and specifically the right to health may have implications on policy making. This is due to the nature of the goods produced as any unintended impact on the balance may lead to an increased social cost. The implications that the right to health might have on the patent balance cannot therefore be overlooked. The objective of this chapter is to enquire into the extent to which patent law could be affected by the existence of the right to health, whether directly or indirectly. As shown in the previous chapter, patent law does not contain specific provisions for cases where the right to health might be in issue, however, it does envisage the possibility of granting a compulsory licence in the interest of public health. It also allows for exceptions...

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