Intellectual Property and Access to Essential Medicines
Elgar Intellectual Property and Global Development series
Edited by Obijiofor Aginam, John Harrington and Peter K. Yu
Chapter 8: Patent licensing strategies for the research and development of pharmaceuticals in developing countries
More than 80 per cent of the world’s population lives in developing countries where communicable diseases account for 50 per cent of the disease burden (WHO, 2008, Annex, p. 5). The opening recital of World Health Organization’s (WHO) Global Strategy and Plan of Action on Public Health, Innovation and Intellectual Property (Global Strategy and Plan of Action) affirms the need to construct a sustainable basis for research and development (R & D) relevant to diseases that disproportionately affect developing countries (WHO, 2008). Regrettably, the factors that drive pharmaceutical innovation are often biased against the kinds of diseases that are disproportionately found in low-income countries. Innovation to address diseases primarily affecting the poor is impeded by a combination of under-investment by the public sector and market failure (WHO, 2003, pp. 1–2; WHO Intergovernmental Working Group on Public Health, Innovation and Intellectual Property Rights, 2007, p. 6). WHO Member States recognize that the global network of universities and publicly funded research institutions has a key role to play in the R & D of medicines for neglected diseases, frequently in partnership with the private sector (WHO, 2006, p. 3). The Bayh–Dole model of technology transfer encourages such research institutions to seek patent protection for inventions made using public funds and to license those inventions to the pharmaceutical industry with the goal of promoting their commercialization and public availability (Arora and Fosfuri, 2003). However, in view of the long duration and high cost of innovation, when negotiating with a university, patentee pharmaceutical companies will normally seek an exclusive patent licence
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