TRIPS, Patent Rights and Right to Health: 'Price' or 'Prize' for Better Access to Medicine?

Abstract

The interface between ‘patent rights’ and ‘right to health’ has been one of the most hotly debated issues in the international arena in the past years. By recognizing ‘flexibilities’ to the enforcement of patent rights, the TRIPS agreement aims at reconciling the interests of the patent owners with those of the consumers. However TRIPS has been criticized as not being flexible enough for developing countries facing acute health issues. Although the developments in the framework of Doha could be considered a ‘victory’ for developing countries towards improved access to medicine, extrinsic factors to TRIPS, such as the so called “TRIPS-Plus” agreements and the United States political involvement through the “Special 301”, constitute strong barriers to access to medicine in developing countries.

Finding a fair balance between patent rights and rights to health in these conditions is not an easy task. In an attempt to reconcile patent rights and right to health different solutions have been considered. The ‘price’ and ‘prize’ ideas are amongst them. The differential pricing scheme is framed on the idea of a differential pricing of patented medicine between developed and developing countries. As to the ‘prize’ solution, it involves a change in the current patent system rationale. Instead of 20 years monopoly, inventors would be rewarded in a form of ‘monetary prize’ depending on the impact of the invention on the improvement of public health.

Even though the rationale and the purpose of these solutions are in line with the need of improving the health conditions in developing countries, they both embody intrinsic limits. The ‘price’ solution leaves unsolved the orphan diseases question. As to the ‘prize’ solution, many issues regarding its implementation still need to be addressed.

The ‘price’ and ‘prize’ solutions have not been always considered separately. For instance the Medial Innovation Prize Act of 2005, although based on the “prize” idea, left open the possibility of getting a patent. Leaving the door opened to the possibility of getting a patent would render the “prize” idea more appealing to the pharmaceutical industry.

This paper discuss the issues of access to medicine with regard to the developments in the international area first, and, second, defend the idea of a coexistence of the current patent system and the reward system in a form of ‘prize’. Neither the ‘price’ nor the ‘prize’ idea ends the patent system. They constitute alternatives aiming at remedying the drawbacks of strong patent protection. Depending on the type of diseases at hand the ‘price’ solution or the ‘prize’ may be more suitable. For instance, the Type I diseases, (diabetes, heart disease, asthma and most non-communicable diseases) according to the classification of the World Health Organization’s (WHO) Commission on Intellectual Property, Innovation and Public Health (“CIPIH”), which affect both developed and developing countries, the ‘price’ solution could be suitable. For types II and III diseases (e.g. Tuberculosis, AIDS, and Malaria) which primarily affect developing countries, a ‘prize’ system could give more R&D incentive to pharmaceutical companies.

Keywords: TRIPS, Patent rights, Right to Health, Differential pricing, Prize system, Access to medicine, Developing countries