A Human Rights Framework for Intellectual Property, Innovation and Access to Medicines

Joo-Young Lee

• Publisher: Routledge
• Year: 2016
• ISBN:
  9781317187806
• Edition: 1
• Topic: Law
• Subtopic: Intellectual Property Law
• Index: Law

This book examines the relationship between intellectual property in pharmaceuticals and access to medicines from a human rights perspective, with a view to contributing to the development of a human rights framework that can guide States in enacting and implementing intellectual property law and policy. The study primarily explores whether conflicts between patents and human rights in the context of access to medicines are inevitable, or whether patents can be made to serve human rights. What could be a normative framework that human rights might provide for patents and innovation? Joo-Young Lee argues that it is necessary to have a deepened understanding of each of the two sets of norms that govern this issue, that is, patent law and international human rights law. The chapters investigate the relevant dimensions of patent law, and analyse particular human rights bearing upon the issue of intellectual property and access to medicines. This study will be of great interest to academic specialists, practitioners or professionals in the fields of human rights, trade, and intellectual property, as well as policy makers, activists, and health professionals across the world working in intellectual property and human rights.

Chapter 1
Historical Overview of Patents

Introduction

The model of intellectual property law that took shape during the nineteenth century not only plays an important role in influencing the way we think of intellectual property law, it also restricts the questions we ask about it. One of the consequences of a narrative which teaches us that, within a historical context, intellectual property law is timeless, natural and inevitable, and that it is driven by principle, is that it leads us away from the changes that occurred over the course of the nineteenth century.¹

As pointed out in the above excerpt, intellectual property has often been misconstrued as being ‘timeless, natural and inevitable’. For instance, patents, the main subject of this book, are considered a natural right to property in ideas or the only way a society can encourage invention and innovation. Looking at the history of patents may help us not only to avoid such static approaches to patents, but also to understand current issues around patent systems. This chapter attempts to provide a brief overview of the history of patents by reference to a historical division into three periods put forward by Peter Drahos.² It should be noted that the early history of patents confines itself to a description of the development of patents in European countries as not all societies relied on a notion of intellectual property as a means of encouraging invention and innovation. For instance, imperial China is known as ‘a society that achieved spectacular outcomes in science and innovation without relying on intellectual property rights or a customary equivalent’.³

The territorial period is marked by the principle of territoriality; ‘the principle that intellectual property rights do not extend beyond the territory of the sovereign which has granted the rights in the first place’.⁴ The section looking at this period traces back to the origin of the patent system which saw the Crowns giving monopoly privilege in most of medieval Europe. It moves on to later patent systems and considers whether or not the laws in the French Revolution engendered the notion of a natural property right in ideas by looking at the relevant discussions during the Revolution. In addition, the patent controversy in mid-nineteenth-century Britain, Switzerland and the Netherlands is briefly dealt with. This is followed by reflection on a variation among patent systems seen in nineteenth-century Europe and North America.

The international period is triggered by the growing demand for international regulation of intellectual property in the context of enormous technological developments and the expansion of international trade. The adoption of the Paris Convention for the Protection of Industrial Property (Paris Convention) in 1883 was a landmark event. National treatment of foreign applicants of a patent was established as an international principle. Nevertheless, increasing international cooperation in regulating patents by no means culminated with a harmonisation of national patent rules in this international era. In the US, there existed scepticism over patents in relation to free trade and anti-monopoly policy until the late twentieth century. Developing countries adopted a patent system which would serve their development goals and social policy. This section therefore looks in turn at the adoption of the Paris Convention, the discussion on patents and its relationship with anti-monopoly policy within the US, and patent systems in developing countries.

The global period sees increasing attempts to harmonise patent rules. This section discusses the context within which the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) was adopted in 1994, alongside the increasing competition between world economies and the shift in ideas which places more emphasis on knowledge as property and regards the protection of patents to be favourable to free trade. This section also examines what TRIPS requires World Trade Organization (WTO) Member countries to do and what the issues have been after the adoption of TRIPS. It also considers key features of intellectual property provisions in bilateral or regional free trade agreements, so-called ‘TRIPS-Plus’ standards, as well as the debates over issues of intellectual property and access to medicines in a number of international and national forums.

The Territorial Period

Patent as the Prerogative-based Monopoly

Patents have their beginning in the prerogative-based monopoly system of medieval Europe.⁵ Based on the prerogative power of grant, the Crown could grant individuals exclusive monopolies over particular trades. Examination of the English patent system at this time shows that patents were a device ‘to encourage the transfer of valuable trades and technologies to England’.⁶ Therefore, monopolies would be granted not only to those who had invented something but also to those who had brought technologies from abroad. With some kind of innovation or technology, ‘[p]atentees were required to implement their invention without delay and ensure its continuance by communicating the necessary skills to native workmen’.⁷

However, the practice of the Crown giving monopolies was not consistent with the designed purpose. Patents were often granted to the wrong persons who were neither inventors nor specialists but were rather favourites of the Crown. Moreover, patentees were given the same power as the Crown ‘to supervise, search, and seize the goods of infringers as well as the ability to levy fines and penalties for infringement’.⁸ The abusive exercise of the Crown grant monopolies led to a proclamation from the Queen in 1601 which introduced judicial review so that the courts could give their view on the validity of a grant of monopolies.⁹

The response of the English common law courts to the grant of monopolies can be seen in Darcy v. Allein¹⁰ which is regarded as an early landmark case on monopolies. The case established that ‘monopolies are a profound interference in the liberty of subjects to trade’ and ‘are void at common law’.¹¹ The court found that monopolies which prevented others from working and trading contravened the common law, which gave freedom of trade a primary status. Another concern raised by the court was that monopolies were used for the private gain of the monopolist. Furthermore, the ability of the monopolist to decide the price would affect everyone and could therefore undermine public welfare.

In 1623 the English Parliament passed the Statute of Monopolies¹² which reflected the prevailing view of the common law court. The statute criticised that many grants, based on ‘misinformation and untrue pretences of public good’, had been ‘unduly obtained and unlawfully put in execution’, and it declared all monopolies to be contrary to the laws of the realm and therefore to be void.¹³ As an exception, section 6 of the statute allowed patents to be granted only to those who made new manufactures within the territory for limited periods (14 years – the duration of two training periods for craft apprentices). Even such grants were given only with the proviso that they were not ‘mischievous to the state’, for instance through raising prices. Although the Statute of Monopolies was commonly accepted to lay down the legal foundations for patents,¹⁴ patents remained to be seen as a creature of prerogative-based privilege until the late eighteenth century.¹⁵

The Emergence of Modern Patent Systems and Patent Controversy

Most European countries, with the notable exception of Switzerland, established modern patent systems in the first half of the nineteenth century.

The French Revolution and a natural right to property in ideas

The French Revolution abolished the privileges granted by the Old Regime and established a modern intellectual property system.¹⁶ The laws during the Revolution were often stated as laying a foundation for the idea of the natural rights of inventors or authors. Section 1 of the French law of 1791 stated: ‘All new discoveries are the property of the author; to assure the inventor the property and temporary enjoyment of his discovery, there shall be delivered to him a patent for five, ten or fifteen years.’ Here, the right of authors or inventors was seemingly perceived to be one that was recognised rather than created by legal instrument. However, the debates during the French Revolution reveal that there existed a tension between private interests in ideas and public enlightenment.¹⁷ One argument about ideas was that ‘ideas were social rather than individual in origin’; ‘the progress of enlightenment depended upon public access, rather than private claims to ideas’.¹⁸ The contrasting argument was that the sanctity of individual creativity should be protected as a natural right. Although these debates are primarily concerned with authorship, they may also provide insights in the field of patents.

The 1791 law itself appeared not to be coherent with the natural rights argument. While it recognised an author’s right as a natural property right, it limited the term of protection after which the works of authors would become part of the public domain. Classical natural rights would have no expiry dates. Furthermore, the decree adopted later in 1793 put more emphasis on the notion of the public domain. The grant of a limited property right to authors was presented as ‘a mechanism for promoting and ensuring public enlightenment by encouraging and recompensing intellectual activity’.¹⁹ Therefore, it may not be fair to say that the legacy of the French Revolution on intellectual property is confined only to the notion of a natural property right in ideas.²⁰ The recognition of the public domain during the French Revolution deserves adequate attention.

Patent controversy in the nineteenth-century United Kingdom

During the period o...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Contents
• Foreword
• Preface and Acknowledgements
• List of Abbreviations
• Introduction
• 1 Historical Overview of Patents
• 2 Perspectives on Patents
• 3 Public Health Safeguards in the TRIPS Agreement
• 4 Human Right to Access to Medicines
• 5 The Right to Science and Culture
• 6 Relationship between TRIPS and International Human Rights Law in the Context of Access to Medicines
• 7 Human Rights, Intellectual Property, Innovation and Access to Medicines
• Conclusion
• Bibliography
• Index