The Conflict And Balance Between Patent Protection Of Pharmaceuticals And Public Health Under The WTO Regime

With a view to the conflict between patent protection of pharmaceuticals and public health, this paper analyzes the ways to balance patent protection of pharmaceuticals and public health, and proposes legislative suggestions on the basis of realistic situations in China.Besides the foreword and conclusion, the dissertation is divided into three chapters.Chapter one introduces the background of negotiating the TRIPS agreement and the international patent protection on pharmaceuticals under the TRIPS agreement. In this chapter, the author mainly discusses the influence of pharmaceutical patents on public health. Pharmaceutical patents can not significantly increase the R&D on diseases which seriously puzzled the poor in developing countries, but allow the manufacturer to force up the prices of pharmaceutical products, which limits the access to necessary medicines of the poor in developing countries because the prices are beyond their payment ability.Chapter two analyzes the documents balancing patent protection of pharmaceuticals and public health under the WTO regime. Firstly, the chapter analyzes flexible provisions for the purpose of protecting public health in the TRIPS agreement, such as objectives and principles, exceptions to patent rights, exceptions to rights conferred, compulsory licensing, exhaustion of IPR and parallel imports. The flexible provisions are very ambiguous and not enough for developing countries to serve their national interests in the circumstance of conflict between patent protection of pharmaceuticals and protection of public health. Secondly, the chapter analyzes another two important documents, namely Doha 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 have made some signal achievements for developing countries in the issue of balancing patent protection of pharmaceuticals and public health, but they still have some defects. To thoroughly resolve this issue, WTO members, especially developing countries, should keep on striving.As a developing country, China faces very serious public health problems.Chapter 3 firstly summarizes the present situation of public health and the access to medicine in China., then reviews the history of patent legislation on pharmaceuticals in China, and analyzes the insufficiencies of such legislation, and also puts forward some corresponding legislative suggestions, according to the TRIPS Agreement, the Doha Declaration and the Decision of the General Council .