TRIPs협정상 개발도상국의 의약품 접근권에 관한 연구 －인도 개정특허법 소송을 중심으로－

Abstract

The development of the intellectual property rights begun when the World Trade Organization drew up the Agreement on Trade--Related Aspects of Intellectual Property Rights in 1995. As the Agreement entered into force, the developed countries, where transnational pharmaceutical companies that produce and sell innumerable types of drugs are situated, have strengthened their drugs’ patents based on the TRIPs Agreement. Such situation resulted in the increase of price and monopolization of the industry by these transnational pharmaceutical companies; the nationals of developing countries are experiencing difficulty in gaining access to some of these essential medicines. This has pushed the society into the critical state of threatening the public health. A classic dispute surrounding such patent rights and the accessibility to medicines is the case concerning Novartis, the multi-national pharmaceutical company, requesting the amendment of India’s Patent Act. Novartis asserted that India’s Patent Act is inconsistent with the TRIPs Agreement - as India has refused its patent application for Gleevec (Glivec - EU), a type of drug used for treating leukemia. About 20% of all generic drugs produced in the world and especially since 90% of lifesaving drugs for AIDS distributed to the third world countries are manufactured in India, thus relevant organizations and patients who need the treatment are keen to follow the result of this India’s case. There is no doubt that the transnational pharmaceutical company put enormous amounts of time, effort and costs to develop a new drug; it would only be natural for the “owner”to profit fully with its new discovery. Therefore, the end-product must be protected by a patent. Patent right is a private property and the enforcement and disposal of the patent is rightfully the patentee’s. However, as general property rights have limitations to the exercise of such rights for the public - patent rights should also have certain limitations of its use for the interest of the public. The original purpose of investing the patent for a medicine was to create an incentive to the research and development of a new drug and also for encouraging such procedure. This permits the access of the new medicine to the patients around the world to maintain a better physical condition. When a person’s life and an intellectual right collide, the intellectual right should be limited as a way of practicing the promotion of right to life. An economic profit should give away to a person’s life because the latter cannot be replaced by another. A State invests intellectual rights for a certain period of time but an individual is impossible to be deprived of one’s human rights. This is specifically why an intellectual right should not authorize economical privileges to an individual or a group for the sake of everyone’s well-being. To achieve this goal, developed countries should and must, along with the transnational pharmaceutical companies, as members of the international community, realize the changing social attitudes and support the developing countries’ access to affordable medicines.