The previous chapter examined the issue of access to medicines from the perspective of human rights. We concluded that access to essential medicines is indeed protected under international human rights law, most notably under the right to health. Access was shown to have different dimensions: availability, physical accessibility, affordability, acceptability, and quality. It is particularly with regard to the element of affordability of essential medicines that this dissertation focuses on. Namely, as was shown in chapter 2, patent protection for medicines interferes with patients’ access to such medicines. This is argued on the basis that patents negatively affect access due to the fact that they in many cases result in higher medicine prices, and consequently the unaffordability of medicines in the context of developing countries facing severe resource constraints.
With respect to the problem of lack of access to medicines, countries, in essence, have two options. They can either assist individuals in buying the medicines they need, for example by granting financial aid, financing the health care system or providing certain medicines free of charge, or they can ensure the that the price of medicines is a low as possible. Ideally states should use both options in order to ensure patients have adequate access, yet the first option is resource intensive which is particularly problematic for developing and least-developed countries. The second option is therefore more feasible. One manner in which medicine prices can be regulated is by curtailing patent protection for such medicines.
This chapter will therefore take a closer look at the patenting of pharmaceutical products and processes. The focus here is on the Agreement on Trade-Related Aspects of Intellectual Property Rights within the framework of the World Trade Organisation. The reason for focusing primarily on the TRIPS Agreement is that it is one of the most recent and far-reaching international agreements within the field of intellectual property protection. It is the first international instrument to comprehensively set out substantive minimum standards for protection of intellectual property rights. The inclusion of intellectual property into the multilateral trading system has had far-reaching consequences. Except for least-developed members, all members of the WTO are required to implement the TRIPS Agreement and its minimum standards of IP protection, which has greatly influenced domestic developments in the field of patent protection for pharmaceuticals.