Patent Necessity: Intellectual Property Dilemmas in the Biotech Domain & Treatment Equity for Developing Countries
Spectar, J. M., Houston Journal of International Law
The dearth of access to affordable AIDS therapies in developing countries is increasingly blamed on the intellectual property norms of the North and their operationalization in global free trade regimes. This article examines key issues, interests, orientations and preferences in the North-South debate on intellectual property rights (IPRs) and the prospects for treatment equity for HIV/AIDS patients in developing countries. The article argues that the North-South logjam over the nature, purpose and extent of IPRs, as illustrated by the polemics over the patentability of plant genetic resources and their ensuing pharmaceutical products, constitutes a significant stumbling block to achieving treatment equity for developing countries. The article further argues that to achieve much needed treatment equity for HIV/AIDS, the international community must examine and adopt new approaches that transcend the strictures of the North-South conflict over intellectual property. The article concludes with recommendations designed to improve the prospects for treatment equity for developing countries within the context of a global pandemic without undermining the basic framework of intellectual property protection.
First, the article reviews the differences between North and South on intellectual property rights, especially with regard to the patentability of plants that often provide the compounds for commercial pharmaceutical products. Then, focusing on the illustrative case of plant genetic resources, the article discusses the differing North-South postures, preferences and priorities that have often colluded to create an impasse in negotiations on IPR protection. In the main, the article argues that the inability of the North and South to satisfactorily resolve key questions about the nature, purpose and extent of intellectual property protection in the previous negotiations sowed the seeds of future conflicts over issues such as compulsory licensing and sovereign rights. In Part II, the article examines the HIV/AIDS treatment gap between North and South and the efforts to close this chasm by achieving treatment equity. Here, the article will examine the perceived impact of the interaction between intellectual property norms and international trade rules, particularly TRIPS, on the affordability of AIDS therapies. Specifically, the article will focus on how the simmering unresolved issues in the North-South schism on the matter of intellectual property rights culminated in conflict over compulsory licensing for HIV/AIDS therapies. Against the backdrop of the North-South treatment gap, the article examines the illustrative conflict between the United States and South Africa over IPR protections, specifically over the matter of compulsory licensing for AIDS therapies and the application of trade policy. In Part III, the article argues that to achieve much needed treatment equity for HIV/AIDS, the international community must examine and adopt new approaches that break the North-South logjam over protection of intellectual property. The article makes several recommendations designed to increase the prospects for achieving treatment equity in the context of the AIDS pandemic without undermining global intellectual property and trade regimes.
II. NORTH-SOUTH DEBATE OVER INTELLECTUAL PROPERTY RIGHTS
Below, the article examines North-South perspectives on intellectual property rights, focusing on the divergence in views on the nature, purpose and extent of IPRs in the biotech domain. The failure of both North and South to satisfactorily resolve key differences about intellectual property protection continues to fan the flames in the fracas over access and affordability.
A. Introduction to Biotechnology
The growth of biotechnology has been spurred by advances in biodiversity prospecting, (1) a practice that many believe will someday lead to a cure for several ailments, including HIV/AIDS. …