Patent rights

© Mark Henley/Panos
Switzerland and other industrialised countries having big pharmaceuticals companies have put the pressure on to reinforce the protection of intellectual property on drugs at an international level. Since 1995, the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) of the World Trade Organisation obliges all states to grant patents on drugs for a period of twenty years, while allowing for flexibilities to guarantee access to affordable medication.

Patents are an exception in a free-market economy, as the inventor benefits from a monopoly that allows him/her to establish the highest possible prices for his/her products (power to fix prices) in exchange for divulging his invention, ideally for the benefit of society. The power conferred by a patent is considerable, which can lead to abuses, to prohibitive pricing, or even barriers to progress.

What is a patent?

A patent is an exclusive right, granted for an invention, that bestow on the holder the right to forbid third parties from using it for professional purposes. The “use” of such a patent includes, in particular: manufacturing, storing, sale and distribution, as well as import, export, transmission and possession to such ends for a limited period of time, generally of 20 years

To be patented, the invention should:

  1. possess an innovative element when compared with the sum of current knowledge and/or expertise.
  2. imply an “inventive activity” or be “non-evident” for a fellow professional.
  3. be able to be used in industrial applications.

When the patent expires, the protection ends, and the invention enters the public domain; that is, it can be freely used by third parties without infringing the patent.

The TRIPS agreement validates a model based on patents . . .

To understand the current debate on research and access to medication, it is necessary to go back to the coming into force, in 1995, of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). This international treaty obliges the member countries of the WTO (164 in 2017) to grant patents for new drugs – which a number of countries, such as India and Brazil, did not do previously. This agreement represented an important victory for the giants of the pharmaceutical industry, allowing them to sell their new patented products at a high price to wealthy patients in emergent countries.

© GMB Akash/Panos

. . . instead of favouring innovation

The TRIPS agreement serves above all the interests of the pharma giants, as the monopoly resulting from the patents guarantees high prices in the long term. In their argument in favour of such an agreement, the pharmas submitted that this extension of patents would enable the related products to make a profit, while favouring research and development (R&D).

The reality is however quite different: patents do not favour innovative research, but are rather destined to protect investments and profits. They act as a brake on R&D, and aggravate the problem of access to medication.

With scant regard for the particular needs of public health in poorer countries, the TRIPS Agreement validated the globalisation of an R&D model based on patents granted to pharma companies. Nevertheless, the instruments known as the “TRIPS flexibilities” make it possible to compensate for certain faults in the patent system and to re-establish access to essential drugs.