On The Conflict Between The Pharmaceutical Patent Right And The Right To Health

With the process of globalization, the intellectual property right gradually break the limit of district. The standards of the intellectual property right mastered by developed countries have basically reached the goal of globalization. The direct consequence is the conflict between the intellectual property right and the human rights. It is more worthy to pay attention to the conflict between the pharmaceutical patent right and the right to health. The TRIPS enlarge the protection of patent to pharmaceutical product. It makes developing countries difficult in the prevention and cure of communicable diseases. The problem of public health is very serious. Although there are some flexible provisions in the TRIPS, there are indefinite and hard to start. The article discusses the conflict between the pharmaceutical patent right and the right to health with the theory of patent law and the law of human rights and the regulations in internationl documents. At last, the article offer some suggestion to solve the conflict.The dissertation is divided into five chapters.Chapter One introduces the relationship between the pharmaceutical patent right and the right to health. There are three forms for the protection of pharmaceutical product. The specific characteristics of medicines decides it is necessary to protect the pharmaceutial patent. The patent right has the character of the property right and private property. The chapter introduces the right to health from the international and internal documents. The right to health belongs to fundamental human rights. The government has the responsibility to protect all the people's rights to health with active actions. The chapter analyzes the relationship between intellectual property rights and fundamental human rights. Then the chapter introduces some regulations related to the intellectual property rights in international documents of human rights and some countries' constitution law. The intellectual property rights and human rights have some common points, but are very different.Chapter Two discusses the conflict between the pharmaceutical patent right and the right to health. The chapter explains what is conflict, the definition and the classification and the characteristics of the conflict of rights, the relationship between conflict of rights and public interest. Then the chapter introduces the reasons for the conflict of rights and analyzes the reasons for the conflict between he pharmaceutical patent right and the right to health: the variousness of human nature and society and the required interest, the unreasonable expansion of individual requirement and the problem of law system.Chapter Three elaborates the representation and the legal consequence of the conflict between the pharmaceutical patent right and the right to health. The global public health crisis needs to be buffered, and the access to medicines is very important to solve the problem. But the pharmaceutical patent system exercises influence over the access to medicines. Then the chapter introduces two important international documents which have influence on the conflict between the pharmaceutical patent right and the right to health. There are TRIPS and the declaration of Doha. Although they have already paid attention to the public health crisis and the negative influence on right to health, and establish some measures to solve the problem. But there is no more specific measures, only has the function of clarify. At last, chapter introduce the legal consequence of the conflict.Chapter Four expounds the co-ordination of the conflict between the pharmaceutical patent right and the right to health. The World Trade Organization and the World Health Organization have paid attention to the serious public health crisis and made great effort to solve the conflict between the pharmaceutical patent right and the right to health. The compulsory licensing issue of patented drugs is an important tool to solve the conflict. The chapter introduces the compulsory licensing issue of patented drugs of England, Canada, India, Janpan and China.Chapter Five discusses the measures to solve the conflict between the pharmaceutical patent right and the right to health. Although the international society have paid close attention to this problem and made many efforts, if to protect the right to health and balance the pharmaceutical patent right and the right to health, there are more efforts to do. The author puts forward four principles: the principle of the primacy of human rights, the principle of the balance of interests, the principle of the limitations of rights, the principle of the public attendance.Through the disscussion of the article, the pharmaceutical patent right and the right to health are proved reasonable and necessary. Facing the serious public health crisis, all the countries and the international society need more effort according to the priciple of the primacy of human rights, the priciple of the balance of interests, the principle of the limitations of rights, the principle of the public attendance besides making full use of the current co-ordination to solve the conflict between the pharmaceutical patent right and the right to health.