Research On Pharmaceutical Patent Protection Under Public Health Perspective

Life and health is the primary human rights and fundamental rights. Drugs are special commodities to maintain healthy and save life. It's of great importance for the protection of public health and promotion of social development to develop new drugs continuously and promote new drugs. With the formation of pharmaceutical intellectual property protection system and continuous development, the conflict between public health benefits and pharmaceutical patent protection has become the focus of world attention. Before TRIPs Agreement under WTO was not reached, drugs and its manufacturing methods had not been included within the scope of international treaties. Most developing countries and poor countries could get relative cheap drugs by the means of manufacturing similar generic drugs or importing generic drugs. Since TRIPs Agreement which includs pharmaceutical products and manufacturing methods has reached, requiring all WTO members to provide patent drugs and its production methods with strict pharmaceutical patent protection, which leads to most patent drugs prices go up rapidly, and makes most patent drugs unaffordable for the poor patients. Expensive patent drugs worsen many developing countries' public health crises. According to these regulations, however, those large multinational pharmaceutical companies are more convenient to make huge profits and occupy international monopoly on international drug markets. Thus the conflict between public health and pharmaceutical patent protection is highlighted.From the viewpoints of the development of global public health crisis and current status of pharmaceutical patent protection system as well as the status of accessing to patent drugs, the article analyzes the conflict between the interests of public health and pharmaceutical patent protection system, explains the reasons of the conflict between the twos and the value of holdings orientation on the coordinating the conflict.. Through the analysis of three texts, the "TRIPs and Public Health Declaration" (hereinafter referred to as "Doha Declaration"), "on the TRIPs Agreement and Public Health sixth paragraph of the Doha Declaration on the implementation of resolution" before the adoption of the three options, and "On the TRIPs Agreement and Public Health the sixth paragraph of the Doha Declaration on the implementation of the resolution, " the author summarizes and analyzes the international community's all efforts in encouraging innovations and intellectual property protection, and the active roles they have to promote the balance between the drug of intellectual property protection and public health benefits. Based on these theories and practice, author tries to give some legal advice on the Improvement of public health legislations and how to prevent public health crisis.This paper is divided into following four chapters:Chapter One focuses on the status of global public health crisis, pharmaceutical patent protection and drug accessibility issues under TRIPs Agreement. Since the adoption of TRIPs Agreement, drugs and ways of producing patent drugs are included in the scope of international patent protection systems, developed countries can easily control most of global pharmaceutical markets on the basis of pharmaceutical patent protection system, making large multinational pharmaceutical companies more convenient gain much more monopoly profits. The developing countries have imposed on patent protection, including patent medicines, which sometimes leads to sharp rising in prices of many drugs, worsens the country's public health crisis. Chapter Two analyzes deeply a variety of reasons of the conflict between the public health crisis and patent protection for pharmaceuticals respectively from the legal basis, economic development and the provisions. On legal level, the conflict between public health and pharmaceutical patent protection is essentially which of the rights of public health right and drug patents right is more important one. On the level of economic development, the conflict between public health and pharmaceutical patent protection is mainly because of unbalanced economic development between developed countries and developing countries, control and anti-control, monopoly and antitrust issues. From the perspective of the provisions in the TRIPs Agreement, the root cause of conflict between pharmaceutical patent protection system and public health is that some of provisions in the TRIPs Agreement are not clear and maneuverability is not strong, so many developing and underdeveloped countries are at a loss when they use provisions of TRIPs Agreement to deal with domestic public health crisis. Chapter Three briefly describes the international community how to coordinate the conflict between public health crisis and pharmaceutical patent protection. Life is the foremost human right, health is one of the basic human rights. And it is not only the primary human right, but also the foundation and source of all other rights. After the Second World War, life and health is accepted universally by all countries. So at any moment, patent drug protection can not be the cost of people's health right, public health should take priority over the right of drug patents. However, protecting public health can not completely give up the interests of patent protection. It's the best way to solve the problem to seek the balance of interests between public health and drug patent protection. After long and hard-working negotiations, WTO has passed the "Doha Declaration", "On TRIPs Agreement and Public Health sixth paragraph of the Doha Declaration on the implementation of resolution" and other agreements. In safeguarding national public health, developing countries have made great progress after a long and arduous struggle, but the "Doha Declaration" and "on the TRIPs Agreement and Public Health sixth paragraph of the Doha Declaration on the implementation of resolution" and other agreements have certain limitations, which does not solve the public health crisis fundamentally. Chapter Four presents the current situation of China's public health, status of the domestic pharmaceutical industry and Chinese legislation on pharmaceutical patent protection. China has attached great importance to public health issue since the founding of new China. Central government has been working to improve public health conditions through a variety of legislative and administrative measures, which continue to lower drug prices so as to maintain public health interest. In recent years, with the spread of AIDS in China accelerated, it is likely to become China's biggest public health crisis. China's pharmaceutical industry has made brilliant achievements from small to large, Especially since the reform and opening up, the pharmaceutical industry has maintained rapid growth. Between 1978 and 2005, the average annual output value of the pharmaceutical industry increased by 16.1%, economic operation quality and efficiency has continued to increase smoothly, so that thus becomes the fundamental guarantee for the national disease prevention and control. But Chinese pharmaceutical industry, "big but not strong," has been the consensus of the industry. China's pharmaceutical industry is big but not strong,97% of all domestically produced drugs are generic drugs. The scale of Chinese domestic medicine market in 2010 reached 755.6 billion yuan, and innovative drug market share was less than 30%, however, the market value of patented drugs in developed countries accounted for 50% or more. Over the years, Chinese pharmaceutical industry are facing massive foreign press, the domestic drug market share is shrinking, competitive ability is difficult to increase, in addition to less fund for new drugs'research and development, in lack of innovative drugs, thus has been difficult to lead the pharmaceutical market. Intellectual property system in China started late but developing rapidly. After 30 years'systematic building, China has basically formed both administrative and legal protection, the different effects of the coexistence of various legal documents, various forms and levels of IPR protection laws and regulations of pharmaceutical sector. Based on the analysis of the three parts, combining China's actual conditions with international experience, the author gives a few legislative advice on the coordination of the conflict between public health and Chinese pharmaceutical patent protection.