The Conflict And Coordination Between Pharmaceutical Patents And Public Health In The Scope Of WTO--And On The Legislation Countermeasures Of China

The conflict between pharmaceutical patents and public health has been a hotly disputed issue in the world. Since TRIPS agreement extends patent protection to the whole technology field, including pharmaceutical field, many international disputes on pharmaceutical patents and public health have occurred in the past few years. The Doha Declaration and the Implementation of Paragraph 6 of Doha Declaration both embodied the international society's concern on this issue. With a view to this issue in the scope of the WTO, this thesis analyzes the cause of the conflict between pharmaceutical patents and public health and the way to balance them. Besides the prologue and the concluding line, the thesis is consisted of 3 chapters. Chapter 1 reviews the history of pharmaceutical patents and public health in the scope of the WTO, and comments on the international situations before and after the Fourth WTO Ministerial Conference, putting an emphasis on two important documents, namely Declaration on the TRIPS Agreement and Public Health adopted in 2001 and Implementation of Paragraph 6 of the Doha Declaration on the TRIPS Agreement and Public Health adopted in 2003. The two documents were signal achievements of WTO on coordinating the TRIPS Agreement and public health. But they still had some defects. To decisively solve the problem, WTO members, especially the developing countries, should keep on striving. Chapter 2 analyzes the reason of the conflict between pharmaceutical patents and public health, and explores the way to coordinate them. Firstly, the author analyzes in system terms the provisions of TRIPS Agreement involving the issue, and discusses their merits and defects. The second section analyzes in depth the cause of the conflict between pharmaceutical patents and public health. On the one hand, pharmaceutical patent itself has both positive factors and negative factors. On the other hand, there are conflicts of interest between different groups, including interest conflict between the pharmaceutical companies and the public and the one between developed countries and developing countries. On the basis of the above analysis, the last section of this chapter explores the coordination system of resolving the conflict between pharmaceutical patents and public health.As a developing country, China faces a rather serious public health problem. Chapter 3 summarizes our country's present situation of public health firstly, then reviews the legislation development in the field of pharmaceuticals, and analyzes our insufficiencies of present legislation, mainly including the deficiency of supportive system to prevent patent rights from being abused and the lack of the special protective measures about Traditional Chinese Drugs (TCD). Then according to the two problems, the last section offers legislationsuggestions on the basis of our realistic situation. The final phase concludes that in resolving the conflict between pharmaceutical patents and public health, WTO members should have rights of life and health as a prior consideration, and try to find the way to coordinate public health and pharmaceutical patentee's interests. From their actual conditions, the developing countries should make the most of the provisions of TRIPS Agreement in favor of public health, and establish effective legal system. And the developed countries are suggested to support and help the developing countries, in order that all countries can develop together and harmoniously.