HealthLawProf Blog

Editor: Katharine Van Tassel
Case Western Reserve University School of Law

Sunday, August 7, 2011

Guest Blogger J. Janewa OseiTutu: Intellectual Property & Public Health

Jan OseiTutu I would like to thank Katharine Van Tassel for inviting me to contribute to the Health Law Profs Blog as a guest blogger. I am excited to have the opportunity to participate in this forum! Over the next few weeks, I will discuss intellectual property as it relates to global health and trade. I will start with a brief introduction to some of the issues before addressing specific topics in subsequent posts.

 How does intellectual property relate to public health? Pharmaceutical companies invest tremendous financial resources in the research and development of new drugs and they seek to recover some of these costs through the market exclusivity they obtain through patent protection. In this way, these private intellectual property rights are seen to stimulate innovation. However, in the debate about the impact of minimum global standards for intellectual property rights, and patents in particular, the issue of health and access to medicines has presented one of the most powerful and compelling arguments against the global development and enforcement of high intellectual property standards. 

 Prior to the birth of the WTO in 1995[1], each nation was largely free to determine the appropriate level of intellectual property protection in light of its national goals and interests.  The international agreements on intellectual property that pre-dated the WTO, such as the Paris Convention for the Protection of Industrial Property and the Berne Convention for the Protection of Literary and Artistic Works did not prescribe enforceable minimum intellectual property standards. When the WTO Agreement on Trade-Related Intellectual Property Rights (TRIPS) entered into force in 1995, WTO members were required to provide a certain standardized level of intellectual property protection. While implementation delays of 5 years and 9 years were provided for developing and least developed countries respectively, this has not proven to be sufficient. Further, if a member state fails to comply with it obligations under the WTO Agreements, other member states can initiate a dispute using the WTO dispute settlement mechanism.

For instance, in May 2010, Brazil and India filed complaints against the European Union (EU) and the Netherlands at the WTO over the confiscation of generic drugs in transit. The EU border seizures were part of its intellectual property enforcement program. The drugs in question were not patent protected in either the point of origin or the final destination. Brazil and India cited a number of provisions under TRIPS in support of their complaints. Neither of these cases has proceeded to a dispute settlement panel, and the dispute between India and the EU was settled last week.

 Prior to these recent complaints, standardized intellectual property rights under the WTO resulted in health-related dispute settlement cases like the 2001 Canada – Patent Protection of Pharmaceutical Products case in which the Government of Canada sought to defend the regime it had in place in order to allow the quick entry of generic drugs into the market. According to the EU, the rights of the patent holder to the full 20-year patent monopoly were not being respected as required by TRIPS. According to Canada, the rights of the patent holder should not take precedence over the public interest in access to low cost medicines.  Ultimately, the case was decided primarily based on the interests of the patent holder.

 Since that time, the WTO member states have acknowledged, through the Doha Declaration on the TRIPS Agreement and Public Health, the relationship between intellectual property rights and public health.

 - J. Janewa OseiTutu

[1] Although the General Agreement on Tariffs and Trade (GATT) has been around since 1947, its successor, the WTO did not come into being until 1995.  Intellectual property rights were also first merged with international trade framework with the creation of the WTO in 1995.

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