Health and intellectual property rights

Health and intellectual property rights

by Frederick M. Abbott

in Research Handbook on Global Health Law, pp. 135 - 63, eds. G-L Burci & B. Toebes, Elgar 2018

Intellectual property (IP) plays a significant, and often controversial, role in the health sector. This book addresses global health law and in that regard is looking at health and IP regulation from the worldwide perspective, rather than from the perspective of a single national or regional territory.

International agreements regarding IP are intended to enlarge the geographical scope of right-holder interests by facilitating their ability to secure rights in multiple and diverse jurisdictions, as well as to harmonize or approximate standards at some level. As with other international economic agreements, there is thought to be a benefit to facilitating protection at the international level through efficiencies, including efficiencies gained through requiring IP applicants to comply with a similar set of requirements and meet a similar set of standards. It is probably correct that international IP agreements are a more efficient means of providing IP protection on a global basis than entirely separate national processes and rules.

On the other side of the equation, international IP agreements reduce the discretion afforded to national authorities to make judgments about the social benefits and costs of IP in general and in specific cases. A national government may recognize that agreeing to international standards for IP will have a potential negative impact in terms of the public health budget, but conclude that agreement to these standards is on the whole beneficial to the country because of positive effects in other areas. This puts public health authorities in a difficult situation. A negative impact on the public health budget may not be offset by positive impact of an agreement in other areas (for example, in manufacturing).