Patent Rights and Human Rights: Exploring Their Relationships

Abstract

The assessment of the relationship between the patent rights and human rights have resulted in several tentative findings, such as by the UN Sub-Commission on the Promotion and Protection of Human Rights that there are ‘apparent’ or ‘actual or potential’ conflicts. Also WIPO says that ‘conflicts may exist’ between the two. This article, which is based on a PhD dissertation on the right to food and the TRIPS Agreement, analyzes the relationship between the two based on an established understanding of conflict in international law, namely incompatible obligations. Also another level of conflict is introduced, namely conflict on the level of prescribed measures in one treaty which impedes the taking of measures prescribed by another treaty. Finally, the article assesses conflict on the level of impact. The findings are that strict legal conflict between the t wo is difficult to establish, but that there are serious concerns regarding their implementation. Developing states should make use of all the flexibilities that TRIPS provides.

Keywords: conflict between treaties, TRIPS, International Covenant on Economic, Social and Cultural Rights, the right to adequate food, exclusion from patentability

JEL Classification: 034