Improving access to patented medicines: are human rights getting in the way?

This paper examines the value of human rights arguments in reducing the access gap to patented medicines. Great efforts continue to be poured into institutional, doctrinal and activist settings to bring human rights thinking to bear on the grant and exploitation of patents. Far from triggering meaningful intervention, however, the international human right to health functions as a placeholder, pointing to specific sites of injury or harm and diverting attention from larger ambitions of justice over current incentive structures around patented pharmaceuticals. Excessively technical, incomplete theorising and linguistically driven decision-making have purged reflexive spaces in patent law that might have accommodated purposive reasoning aligned with the protection of human rights. Reliance on the human right to health to correct the technocratic forces in patent law is doomed to fail, because doing so ignores the source of the problem. The point is not that we should not limit patent rights; it is that we cannot do so using only human rights thinking. It would be far better to uncouple human rights from patent law, so that we may systematically retool the latter to be a purposive and reflexive system of law that understands and participates in its own consequences