| In recent years, people have paid high attention to public health with thefrequent occurrences of the global public health incidents. Thus pharmaceuticalpatent and public health health has been becoming the focus of the world. Thedomestic academic circle of the patent law hasn't paid enough attention to thepharmaceutical patent protection about public health, and the circle of theintellectual proporty hasn't full knowledge of it in practices. Therefore, there arevery important theoretical significance and practical values to study this issue atthe present time. the author summarizes the special provisions and newdevelopment of pharmaceutical patent legislation in civil and international law togain the legislation current in this field and offer some use for references inChina.The article is consisted of four parts, the contents are:In part 1, it reviews the general theories of pharmaceutical patent protectionconcisely and introduces some characteristics of pharmaceutical invent such asenormous investment and rewards ,close relationship with public interests and soon, defines the pharmaceutical patent discussed in the whole article. In thischapter it also introduces the meaning of the right to health, which gives aforeshadowing for the following content.The conflict between pharmaceutical patent and public health are analyzedroundly in part 2. It briefly deals with the inherent conflict between accessing todrags and the patent system. It has included the reason of higher price and loweraccessibility of drugs in developing and undeveloped countries. This part alsopoint out that the TRIPS Agreement has exerted negative influence onimplementing domestic public health policies in many developing countryMembers by adversely affecting their to medicines. The Doha Declarationenables the people on the global to see the aurora of reform in the intellectualproperty regime regarding public health.In part 3, the systems of the solution to the conflict between pharmaceuticalpatent and public health are introduced and analyzed.Firstly, it is compulsory licensing issue of patented drags. In pharmaceuticals class compulsory licensing is an important tool to promotecompetition and to low prices. It stands for public health interests, argues thatcompulsory licensing is effective for the goal of accessing to drugs in affordableprice, and provids detailed interpretation about Article 31 and of the TRIPSAgreement. Then it takes the practice of Canada and Brazil as the classicexample.Secondly, it focuses on the parallel import of patented drugs. Exhaustion ofintellectual property rights theory is the most fundamental issue. It includesnational exhaustion, international exhaustion and regional exhaustion. The authorprimarily brings about the new concept of regional exhaustion, which asserts thatpatent right exhaust in less developed region once patented products sold or used.Then it deals mainly with the advantages and disadvantages of parallel import ofpatented drugs and the provision of it under the WTO framework.Thirdly, it is differential pricing of patented drags. With regard to drugsaccessibility, differential pricing is aware of the significant difference betweendeveloped and undeveloped world. It discusses the feasibility of differentialpricing in theory, which parallel import, external referencing, and compulsorylicensing are all should be well controlled in operating process of differentialpricing.Finally, the author expounds the flexible provisions such as BOLARexception and Article 30 of the TRIPS Agreement. The interpretation andclarification of these provisions is favorable for developing countries to servetheir national interests in the circumstance of the conflict.The content of part 4 is a summary of legislation and the advice of thesolution to the conflict between pharmaceutical patent and public health in China.It extents both from the comparative analysis international treaties and nationalpractices of some countries to improvement of relevant issues in our country. |
PDF Full Text Request