Rights, Patents, Markets and the Global Aids Pandemic

242 Pages Posted: 23 Sep 2004

See all articles by James Thuo Gathii

James Thuo Gathii

Loyola University Chicago School of Law


In this article, I seek to contribute to the repertoire seeking to expand access to and increase the affordability of essential drugs to low-end consumers facing life threatening diseases such as HIV/AIDS. I do so in three ways. First, by critically examining how South Africa has used its social and economic rights protections to expand access to health services for indigent persons. Second, by using market-based justifications for construing intellectual property rights protections consistently with providing access to essential medicines. For example, I argue that antitrust objectives of competition law and policy counterbalance the danger of monopolistic protection of intellectual property rights. If adopted in the interpretation of the WTO's TRIPS Agreement, such an understanding has the potential to carefully balance between protecting patents for essential medicines, on the one hand, and their accessibility for those who might not otherwise be able to afford them, on the other. Such a perspective would also mediate the tension between patents as market commodities that deserve strong legal protections, on the one hand, and patents as a public delegation of a private property right, on the other. Third, I demonstrate that though well-intentioned, the FDA's regulatory framework for drug safety and efficacy embodied in pre-market testing and approval imposes high cost barriers to new entrants into the pharmaceutical industry which in turn limits expeditious access to affordable drugs for life threatening illnesses. I thus advocate a consumer-driven, anti-cartelist strategy to counterbalance pharmaceutical industry concentration that invariably results from the foregoing regulatory framework. Perhaps a less concentrated pharmaceutical industry that was also more competitive would offer consumers affordable choices.

Suggested Citation

Gathii, James Thuo, Rights, Patents, Markets and the Global Aids Pandemic. Florida Journal of International Law, Vol. 14, pp. 261-352, 2002. Available at SSRN: https://ssrn.com/abstract=594522

James Thuo Gathii (Contact Author)

Loyola University Chicago School of Law ( email )

25 East Pearson
Chicago, IL 60611
United States

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