Patent Law - Balancing Profit Maximization and Public Access to Technology
52 Pages Posted: 22 Apr 2005
Patent protection, like other forms of intellectual property protection, has a long history. Today, the United States and other developed countries have both strengthened the scope of intellectual property laws and expanded the range of subject matter covered by such laws. Additionally, international protection of intellectual property has become an objective of many nations. The recent Agreement on Trade Related Aspects of Intellectual Property Rights, Including Trade in Counterfeit Goods of the General Agreement on Tariffs and Trade (commonly called the TRIPS Agreement), which is overseen by the World Trade Organization (WTO), was agreed to by 117 countries. This agreement formally links the protection of intellectual property with international trade. The agreement allows member countries to enforce intellectual property rights via trade sanctions. Furthermore, it provides that the WTO will provide the forum for resolution of disputes among member nations. The consequence of this agreement is that the economic interests of both private enterprises and developed nations may deprive developing countries of immediate access to modern technology, including pharmaceuticals. This can have a significant adverse effect on the health and well being of citizens of such countries. For example, the HIV/AIDS epidemic may continue to spread unchecked in developing nations if patented drugs are unavailable in such countries due to their cost. Achieving a solution that eliminates, or at least minimizes, this adverse impact requires an exploration of the policy reasons for the existence of intellectual property law. Likewise, this entails an examination of both the benefits and detriments to society that flow from the existence or non-existence of intellectual property law. Additionally, it requires recognition that intellectual property law, like most law, represents a balance of underlying policies or societal objectives that may often be inconsistent. Finally, the balance achieved by intellectual property law must be examined to determine if a proper balance has been struck by the existing law.
This paper will conclude with some concrete proposals for striking a balance between protecting intellectual property rights and minimizing deprivation of the benefits of intellectual property for developing nations. Such proposals, if implemented, can have an immediate impact on increasing the availability of patented drugs used to fight the HIV/AIDS crisis in developing nations.
Keywords: Patents, technology, HIV, AIDS, WTO, TRIPS
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