A Follow-on Innovation Perspective in the Biopharmaceutical Industry
New Horizons in Competition Law and Economics series
Chapter 4: The Right to Health as an Interpretive Principle of Patent 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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