TRIPS, Patents and Access to Medicine

[Name of the Institute]

TRIPS, Patents and Access to Medicine

1Proposal Title

TRIPS, Patents and Access to Medicine

2Research question

What is the impact of “WTO agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs)”, with relation to patent and other intellectual property laws, on constitutional protection of every citizen's right of having full access to health care services and essential drugs?

Under the light of above primary question, the research will address the following sub questions:

1) What is the cost of patent? 2) What is being done to ensure that balance is struck between Patents Rights and Human Rights? 3) Is access compromised for innovation in developing countries? 4) What is the viability of local pharmaceutical production in developing countries?

3Problem statement and motivation

3.1Introduction

The constitution of the “Republic of South Africa”, 1996 (hereinafter referred to as the “Constitution”) refers to as the governing body of South African law and any deviation from the legislation would be eventually considered as invalid under the Section 2 of the Constitution.

Under Section 27 (1) (a) of the Constitution, it is expressly noted the right of every person living in Republic of South Africa to have to full access to healthcare facilitation that include 1) providing timely emergency care to every citizen regardless of their ability to afford the health facility, 2) providing treatment and rehabilitation health facilities and consequences, 3) provision of special care needs to elder citizens, AIDS and HIV patients, patients in pain, disabled persons, newborn infants and pregnant women , 4) healthcare without discrimination, 5) providing effective and affordable palliative care within the cases of terminal or incurable illness, 6) providing healthcare to patients that resemble patients, empathy, tolerance, human dignity and courtesy and finally 7) providing information of availability of healthcare facilities as well as how to access those facilitation.

Notwithstanding the aforementioned, it has been held that WTO TRIPS, which is an international agreement that puts minimum standards for the numerous forms of protection of intellectual property regulation such as patents for pharmaceuticals, are both valid and enforceable within South African law and applied to the country as one of WTO member.

Although, TRIPs provide protection to problems that lead to negative effects of patent abuse and patent protection, it is held that use of these patents and other such safeguards increasingly lead to barriers to access to essential medicines for people due to prohibitive high prices. The question thus arises whether TRIPs implementation are still applicable in the light of section 27 (1) (a) of the Constitution of Republic of South Africa on human rights to have full access of essential medicines.

3.2Overview of TRIPS Agreement

Intellectual property laws in the pharmaceutical products in South Africa has been completely progressed and developed resulting from multilateral agreements such as TRIPs that bound the country as one of the member to follow the minimum set of standards for the protection property rights as well remedies for the patent abuse. The agreement between WTO countries came into being in year 1995 ...