On The Conflict And Coordination Between Pharmaceutical Patent Protection And Public Health

The conflict between pharmaceutical patent protection and public health becomes one of the most important issues about the reformation in WTO. TRIPs Agreement demands all the members of WTO provide strict protection on pharmaceutical patent and their production methods. Developed countries gain legal monopolization rights under TRIPs Agreement which provides pharmaceutical patent protection. TRIPs agreement, however, does harm to developing countries'rights badly who urgently need necessary low-cost drugs.The article starts with the current situation of global public health and the problems of accessing to drugs, then analyzes the reasons of the conflict between pharmaceutical patent protection and public health. According to the analysis of Doha Declaration on TRIPs and Public Health and the Implementation of paragraph 6 of the Doha Declaration on the TRIPs Agreement and public health, we know that the whole world has made a great effort to balance the conflict between pharmaceutical patent protection and public health. On the basis of the above-mentioned analysis, the article puts forward some corresponding measures to deal with the problems of public health protection in China.The article has been divided into five parts:The first part analyzes the current situation of global public health and the problems of accessing to drugs. Pharmaceutical patent protection is included in the TRIPs Agreement which made developed countries control most of the patent technology. Developing countries have to provide pharmaceutical patent protection which leads the price of most drugs increase rapidly and let the drugs unaffordable. Expensive patent drugs make a plenty of developing countries'people on the verge of death because they cannot afford the drugs. The conflict between developed and developing countries has been intensified which leads to a lot of law suits such as 39 pharmacy companies suited South Africa government.The second part analyzes the reasons of the conflict between pharmaceutical patent protection and public health and explains them from jurisprudence, rules and economic development: firstly, from the jurisprudence perspective, the actual reason of the conflict between pharmaceutical patent protection and public health is a battle between pharmaceutical patent right and health right; secondly, from the rules perspective, the reason of the conflict between pharmaceutical patent protection and public health is because of the fuzzy provisions in the TRIPs Agreement which make developing and developed countries unable to make use of TRIPs Agreement to settle the public health problems; thirdly, from an economic development perspective, the reason of the conflict between pharmaceutical patent protection and public health is because of the imbalance economic development between developed and developing countries. Most of the drugs are in the hands of developed countries. Many developing countries and less developed countries are unable to pay for the expensive medical fees.The third part analyzes the value orientation when we begin to balance the conflict between pharmaceutical patent protection and public health. The right to health is a basic human right; the rights of prevention, treatment, control of diseases and usage of drugs are one of the specific human rights. Patent protection for pharmaceuticals at all times cannot at the cost of people's right to health. However, in protecting public health does not mean the total abandonment of patent protection. In the long run, pay attention to and strengthen the pharmaceutical patent protection, integrate it into the international trade legal system will create a fair competition environment which will be good for medical science and technology progress and innovation. The right way to solve the problem is to balance the conflict between pharmaceutical patent protection and public health.The forth part expounds the whole world make a great effort to deal with the problem between pharmaceutical patent protection and public health, according to the analysis of Declaration on the TRIPs Agreement and Public Health, three options before the promulgation of the Implementation of paragraph 6 of the Doha Declaration on the TRIPs Agreement and public health and the Implementation of paragraph 6 of the Doha Declaration on the TRIPs Agreement and public health. Declaration on the TRIPs Agreement and Public Health recognizes the state to take measures to protect public health is non-derogable rights. The Implementation of paragraph 6 of the Doha Declaration on the TRIPs Agreement and public health permits undeveloped and developing countries importing imitation drugs from law operation perspective. Developing and developed countries went through a long period of negotiations in safeguarding public health which have made a lot of progress, however, the Declaration on the TRIPs Agreement and Public Health and the Implementation of paragraph 6 of the Doha Declaration on the TRIPs Agreement and public health has its limitations, which cannot resolve the fundamental public health crisis.The fifth part puts forward some measures to protect public health in China according to the analysis of our country's current public health situation and pharmaceutical patent legislation. China is a developing country, China still at the initial level of pharmaceutical research and development. While our country has taken a lot of favorable measures to safeguard public health but the country's public health situation is still not optimistic. China's existing Patent Law enacted in 1984, which has been amended in 1992 and 2000. According to the analysis of our country's public health situation and pharmaceutical patent legislation, the author puts forward the following measures : firstly, pay attention to the study of the rules, seek favorable interpretation of rules; secondly, use flexible clauses existed in the TRIPs Agreement to put into practice parallel imports; thirdly, use of compulsory licensing system in a flexible way; fourthly , consider adding the"Bolar exceptions"clause; fifthly, improve enterprises'innovation, speed up drug development.