Legal Issues Related to Pharmaceutical Patent under the Trips Agreement and the Doha Declaration

Because of the implementation of the TRIPS Agreement, developing countrieswere forced to adopt the same standards as the developed countries to protectintellectual property rights. Under TRIPS, pharmaceuticals which are a kind of specialcommodity related to human health and life must also be protected by patents. Havingbeen granted pharmaceutical patents, the patent holders acquire exclusive rights to thepharmaceuticals, which make the price of drugs very high due to lack of competition.Patients in developing countries are difficult to afford such expensive drug. Theconflict between public health interests and the interests of patent holders becomevery intense. Doha declaration pointed out the way to address the public healthproblems for developing countries under the TRIPS framework–making full use ofthe provisions in the TRIPS Agreement, which provide flexibility for public healthpurposes, to develop and implement their pharmaceutical patent systems.The development, rules, defects of the pharmaceutical patent system under theTRIPS Agreement will be inspected in this article from the perspective ofinternational law.This article consists of three chapters, including a short introduction and anepilogue:Chapter1, the TRIPS Agreement and pharmaceutical patents, first introduces thebackground of the TRIPS Agreement and what kind of impact caused by theimplementation of the TRIPS Agreement on all WTO members’ pharmaceutical patent system. Patent protection on drugs is a direct result of the implementation ofthe TRIPS Agreement, but also causes high drug prices directly. And then, the chapterdiscusses the conflict between pharmaceutical patent protection and maintenance ofthe public health, and reflects on the pharmaceutical patent system under theframework of the TRIPS Agreement. The chapter demonstrates that the TRIPSAgreement puts great emphasis on the protection of the interests of patent holders,and severely jeopardizes the public health interests of developing countries; it alsoadversely affects drug development and pharmaceutical industries in developingcountries.Chapter2, the response of the Doha Declaration on public health problems,mainly discusses the background of the Doha Declaration and its content, meaningand subsequent development. This chapter points out that public health crisis eruptedin developing countries is due to lack of access to medicines. The internationalcommunity has a new understanding on the relationship between the private right ofthe patent holders and the public health right. Eventually, it led to the adoption of theDoha Declaration. This chapter also analyzes the provisions in the TRIPS Agreement,which provide flexibility for the public health purposes. Studying and using thoseprovisions benefit the developing countries to safeguard public health.Chapter3, China’s strategy for addressing public health problems, mainly relatesto ways and means of addressing public health problems in China under the TRIPSAgreement framework. Firstly, the pharmaceutical patent system in China is reviewed,and from a public health point of view, it is evaluated. China’s pharmaceutical patentsystem does not take full advantage of the flexibility provided by TRIPS Agreement,and this chapter focuses on this issue. Secondly, this chapter also analyzes that it isnecessary in China to implement the compulsory licensing of patented drugs toincrease competition from generic drugs, so that the public can benefit from it. Finally,this chapter indicates that pharmaceutical patent applications should be examinedfrom a public health perspective, and that china should encourage pharmaceuticalsR&D and the development of pharmaceutical companies.