Discussion On The Coordination Between Drug Patent And Public Health Under TRIPs

"SARS"raised havoc with China in 2002; In 2005, bird flu spread all of the world continuously; And the most serious infection -- AIDS becomes more and more arrogant According to the UNAIDS/WHO's statistics: Until 2005, there has 40,300,000 HIV infected people and AIDS person in the whole world. And since the first example of AIDS had been discovered in 1981, the AIDS patient that died is up to 28,000,000 and more than 3,000,000 people dies of AIDS every year. AIDS is spreading at the striking speed, and the infected person is increased by the average of 14000 daily in the whole world at present. Thus, we may see the public health crisis is threatening the humanity day by day. The innumerable critically ill being is waiting for treating. But the fact indicated that the patient often cannot obtain the effective treatment and they merely can wait the arrival of death in despair. This kind of situation is more projecting in the most developed country and the developing country. On the surface, the reason is that the expensive drug expenses have limited the patient to obtain the drug. But the most fundamental reason is that the drug patent system causes the drug manufacturer to control the manufacture and the sale of the drug, thus the drug cost is been lifted enormously. So, the international society has launched the warm discussion about the relationship between the public health and the intellectual property rights under the Trips agreement, and the WTO organization also brings the public health into the Trips agreement to discuss. At last, they has passed "the Trips Agreement and Public health Declaration" (Namely "Doha Declaration") in November, 2001. They attempt to balance the public health and the drug patent system, the measure involves the compulsory licensing, exhaustion of IPRs, parallel import and so on. Then they also promulgated "the Implementation Decision of the 6th Section about Doha Declaration" for sought the concrete solution, and officially passed the amendment of agreement 31st as well. Although these agreements have alleviated the contradiction temporarily, how to solve the public health crisis effectively is a long way to the developing country. As a developing country, the public health is also not allowed to neglect in our country. We should use the flexible provision of the Trips fully to draw up the rule of IPRs protection and can alleviate the public health crisis of our country.The paper altogether divides into six chapters: Chapter One mainly introduces the conflict of the public health and the drug patent system, including the tension between drug availability and drug patent system, the tension between the developing country and the developed country, the tension between IPRs and human rights; Chapter Two to Chapter Fourth is the main body of this article, it expounds flexible provisions such as Bolar exception, compulsory licensing and parallel imports; Chapter Fifth proposes the concrete solution according to the actual situation of developing country and China; Chapter Sixth is the conclusion of the paper.