Cynthia M. Ho


Can patent rights and public health coexist? This is a pressing global question in an era where the AIDS pandemic rages in countries that cannot afford to pay for the most effective—and patent-protected—AIDS treatment. Even in countries with higher levels of income, patent problems may nonetheless loom large in unanticipated situations that could turn deadly without access to patented drugs, such as the 2001 anthrax "crisis" or the potential avian flu epidemic. This article provides an important perspective on how international laws currently impact the intersection between patent rights and public health. This article begins with an explanation of patent requirements under TRIPS that most countries must abide by (as WTO members) regardless of their national commitments to public health. The recent compulsory licenses in Thailand and Brazil are used as illustrations of some of the TRIPS requirements, as well as what issues receive the most controversy. The article also highlights terms in subsequent TRIPS-plus agreements that may further impede access to public health. The last part provides an overview of recent international and national actions that respond to TRIPS-plus agreements. International discussions within the WIPO and WHO forum are discussed, as new proposals, including the proposed treaty for Access to Knowledge ("A2K") and a Research and Development Treaty. India's unique approach to limiting patentability to foster public health is also highlighted as an illustration of how nations may comply with TRIPS without sacrificing concern for public health. Finally, technological solutions to address the balance are also considered.

Included in

Law Commons