4. Criticism of Patent Protection

Patent protection leads to a rise in drug prices keeping drugs out of reach of people in developing countries.  Generic drugs are less expensive than the patented, brand-name types. This means that a wider market for generics will give access to more people – especially in developing countries – to essential medicines.⁸ 

The strict application of patent rights has an adverse impact on access to essential medicines as it limits the possibility of purchasing affordable non-patented drugs.⁹ Moreover, “[e]nforcement of WTO rules will have a negative effect on local manufacturing capacity and will remove a source of generic, innovative, quality drugs on which developing countries depend.”¹⁰  The inflated drug prices will prevent poorer people especially in developing countries from accessing essential drugs threatening – and in some instances violating – their right to life and health.¹¹

It is also argued that relying on patent protection for R&D will impede adequate research on medicines in developing countries for tropical diseases such as malaria, because of lack of resources in developing countries which discourages pharmaceutical companies from conducting costly research on drugs that will not pool the costs of this research.¹² It is necessary, therefore, that government and academic institutions, both in developed and developing countries, continue to allocate resources to research and development, to ensure that all diseases receive the attention that is required.

It is also argued that R&D – the raison d’être of patents – is largely conducted by public funds in public laboratories and universities and does not justify the monopolies multinational pharmaceutical companies will benefit under the TRIPS.

---

8- Wojahn, P, “A Conflict of Rights: Intellectual Property Under Trips, The Right To Health, And AIDS Drugs,” 6 UCLA J. Int'l L. & For. Aff. 463 (Fall 2001/Winter 2002) 465.
 
9- Hoen, E “Public Health and International Law: TRIPS, Pharmaceutical Patents and Access to Essential Medicines: A Long Way from Seattle to Doha” 3 Chicago Journal of International Law 27 (Spring 2002) 29.
 
10- Id., at 29.
 
11- Joseph S (note 4 above) at 432.
 
12- For the 1,223 new drugs approved form 1975 until 1997, only one percent treats tropical diseases.