Pharmaceutical Patent Bargains: The Brazilian Experience

50 Pages Posted: 2 Jun 2011

See all articles by Bruno Meyerhof Salama

Bruno Meyerhof Salama

University of California, Berkeley - School of Law; Fundação Getulio Vargas Law School at São Paulo

Daniel Benoliel

University of Haifa - Faculty of Law

Date Written: 2010

Abstract

In the backdrop of the strict patent regime flatly adopted by the World Trade Organization (WTO) for all countries, a few countries constantly challenge this system through aggressive patent bargains. Within the pharmaceutical sector, noticeably, some countries now threaten to issue or otherwise actually issue compulsory licenses that may sway large pharmaceutical companies into selling drugs with large discounts or into granting voluntary licenses domestically. That is conspicuously the negotiation strategy adopted by Brazil in its negotiations with big international pharmaceutical companies.

This paper explains Brazil’s aggressive bargaining approach based on an analysis of two aspects of its political economy. The first has to do with the international context of patent bargaining in the post-WTO era. Accordingly, the existence of large and fast-growing domestic markets position countries like Brazil as strategic destinations for Foreign Direct Investment (FDI) and trade. Combined with a near absence of pharmaceutical product innovation, these conditions boost Brazil’s bargaining power for issuing compulsory licenses over pharmaceutical products. The second aspect, more exploratory, is related to political economy dynamics inside Brazil. Accordingly, the political framework in Brazil undermines long-term policies and favors short-sighted ones also vis-a-vis research and development (R & D) investments in the pharmaceutical industry. This remains true regardless of the strictness of the patent regime in place. The lesson of Brazil is particularly relevant for other, more powerful, developing countries which presently examine Brazil’s approach while further challenging the WTO’s strict patent policy for the future.

Suggested Citation

Meyerhof Salama, Bruno and Benoliel, Daniel, Pharmaceutical Patent Bargains: The Brazilian Experience (2010). Cardozo Journal of International and Comparative Law (JICL), Vol. 18, No. 3, 2010, Available at SSRN: https://ssrn.com/abstract=1856629

Bruno Meyerhof Salama (Contact Author)

University of California, Berkeley - School of Law ( email )

2240 Piedmont Ave. Berkeley
Berkeley, CA 94720
United States

Fundação Getulio Vargas Law School at São Paulo ( email )

R. Rocha, 233, Bela Vista
São Paulo, 01330-000
Brazil

Daniel Benoliel

University of Haifa - Faculty of Law ( email )

Mount Carmel
Haifa, 31905
Israel

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