Pharmaceutical Patent Protection. The Trips Agreement And Public Health Maintenance Probe

Since TRIPS agreement came into force in 1995, it has made great efforts to protecting intellectual property rights. But in recent years, because the impact of infectious disease and patent right disputes of several medicines took place, the international community pays closer attention to protecting intellectual property and contradiction of social public interests. How to make social public interests safeguarded while protecting people's " private right " of intellectual property right becomes one of the critical problem, so the international community pays more attention to it. Many developing members side appear question this origin point to TRIPS agreement, they consider that too much attention are put into private rights in this agreement and the public interests are ignored, so they call for revising TRIPS agreement. It is a problem of how to balance private right and public interests, which need to be solved by international community as soon as possible. Because of this, I attempt to carry on deep research to this problem. This text is divided into four parts.First part, generality has introduced the global and public health overall state at present at first; Secondly, take South Africa the medicines and relevant articles control amendments as an example" International dispute caused " the patent locality uses " Brazil With permitting the dispute and U.S.A. that cause by force, the introductions of three cases of international dispute related to TRIPS agreement medicine product patent clause of virus crisis of Canadian anthrax and characteristic analysis, have expounded the fact emphatically the measure which the countries concerned take in order to overcome the public health crisis and relevant clauses of TRIPS agreement are conflicts and disputes in these cases. These conflicts and disputes have reflected present TRIPS agreement can't solve medicines patent protection and public conflict while maintaining health effectively, the relevant rules in TRIPS agreement have irrationality. Second part, on the basis of the limitation on solving medicines patent protection of TRIPS agreement with safeguarding the conflict, "TRIPS agreement and public health Doha declaration "and " about implement Doha council, declaration of article 6 resolve " get new development to this question. Should summarize the main contents of these two files partly, think two file these solve medicines patent protection with public to maintain problem that conflict have important realistic meanings healthily, have certain legal effect, but have obvious limitation at the same time, namely does not solve the problem that exist effectively yet. So, should continue reviewing the rationality of agreement medicines patent protection of TRIPS partly, think the standard of medicines patent protection too high, is unfavorable to technological transformation and medicines to innovate, cause medicines patent protection with safeguarding the reason that can't reach the balance public health. Should reorient ate to the standard of agreement medicines patent protection of TRIPS under the values of fair justice, follow human rights principle, the principle of common interests of mankind and fair principle to revise TRIPS agreement, could coordinate the medicines patent right with maintaining the relation between them public health in TRIPS agreement frame effectively in this way. The third part, I get out of and coordinates medicines patent protection and public countermeasure that maintains and conflicts healthily under TRIPS agreement, including legal countermeasure and illegal measure. Among them the legal countermeasure is as follows, flexible application of the elastic clause of TRIPS agreement; Make the medicines patent system suitable for the national conditions; The intellectual property right abuses the antitrust structure of the behavior; Utilize " the early working exception " effectively; Rational utilization is permitted by force; Utilize the medicines to import the measure parallelly in the limited degree; Long-term implementation of the pricing system of the difference. The illegal measure is as follows, the ones that strove for TRIPS agreement amendment, forgave the protocol or resolved took shape as soon as possible; Rational utilization is donated charitably; Developing countries should strengthen medicines researching and developing and production capacity. Through these countermeasures, offer more medicines to obtain the way at being public health crisis for side, member of WTO, respect the medicines patentee's legitimate interests at the same time, can make the medicines patent right and public healthy maintenance reach the relative balance well. The fourth part, Have introduced the patent protection of medicines of our country and public current situation that safeguard healthily, think the patent protection of medicines of our country has already reached the standard required in TRIPS agreement, has safeguarded and still existed and deficient public health at the same time, medicines patent protection and public conflict that safeguard healthily exist in our country of our country too. Combineour country's conditions, according to the relevant countermeasures put forward of the third part, our country should focus on several respects and work well: From the view of legal countermeasure, on the internal legislation, our country should make the patent system suitable for the national conditions; On the use angle in the international regulations, our country should pay close attention to existing TRIPS agreement dispute case, the favorable rule to excavate TRIPS agreement, and try to favorable to the right of our country more in TRIPS agreement negotiation; From the point of view of illegal law measure, our country should improve the medicines and study and invent ability , in addition should perfect preventing the system public health of our country . On the basis of the thing that forefathers study ,this thesis have strengthened the medicines patent right and public research that safeguard the conflict problem healthily, embody in mainly: 1, The rule to involve to the patent international dispute of several medicines has carried on deep analysis; 2, Have proposed the feasible suggestion from two respects of entity and procedure on the implementation permitting by force; 3, Should use the measure of parallel import in the limited degree; 4, Have done certain evaluation and analysis and suggestion to other countermeasures.