Patent right and access to medicine

The reasons for the lack of access to essential medicines are manifold, but in many cases the high price of drugs is a barrier to needed medicines. The unaffordable prices of drugs are often the result of strong intellectual property protection. This thesis lay out the conflicts between patent right protection and access to medicine as human right, especially the impact of TRIPS Agreement on the availability and prices of drugs in developing countries. Previously many developing countries allowed only for limited patent protection in pharmaceutical products, but the TRIPS Agreement brought a big change and makes the granting of patents for pharmaceuticals obligatory in the member states. The issue in terms of patents and access to drugs has drawn large attention of a wider public and intrigued a global thinking. The patent provisions in TRIPS have been subjected to much criticism for failing to reach an appropriate balance with respect to patent protection and access to life-saving medicines in developing and least-developed countries. It was also criticized that the provisions in TRIPS Agreement are more in favor of owners of intellectual property to facilitate global trade. Although TRIPS does offer safeguards to remedy negative effects of patent protection or patent abuse, in practice it is unclear whether and how countries can make use of these safeguards when patents increasingly present barriers to medicine access. Access to medicine as human right – right to life, right to health and right to enjoy the benefits of scientific progress and its application -- should be protected since these fundamental human rights are embed in various international human rights convention and instruments. The state party hold human rights obligation to promote access to essential medicines, and the private sectors are also accountable to respect human rights and make contribution to promote access to essential medicines. The human rights based approach to intellectual property rights, as a solution to alleviate people’s suffering from lack of access to medicines, requires a balance between public interest and legitimate interests of the patent owner. However, human rights primacy doesn’t mean patent holder’s interests were push into the background. It converts the patent right from a property rule (right to exclude) to a liability rule (right to be paid) in the specific situation where human rights protection is needed to increase access to medicines