Integrating a Human Rights Perspective into Patent Law to Promote Public Health: Lessons From the Orphan Drugs Regime

Abstract

Patent is justified as a tool to stimulate innovation and promote societal progress. Though the emphasis is on public welfare and public interest, the theoretical aims and practical outcomes are disconnected. In reality, the patent system results in monopolistic practices, inflated prices, and restricted access which raise huge concerns especially in the healthcare sector. Attempts to harmonise patent law and human rights principles is not a new phenomenon and has been part of many international instruments. The TRIPS agreement and its flexibilities, is are significant steps aimed at balancing patent and human rights. The implementation of these however, is inadequate highlighting the gaps in the existing system. 
This paper analyses the need to incorporate human rights principles into patent law by looking at public health impacts of patents. The challenges in the existing framework are studied through the case of orphan drugs. The patent system acts detrimentally to societal welfare by not promoting research and also restricting access. This is because the system is largely market driven giving priority to commercial interests rather than social values. This paper argues for a new approach where patent law is rethought in terms of public health and human rights. In the presence of a robust framework, innovation will be promoted giving due regard to factors such as incentivising socially valuable innovation and equitable access. Such a framework will align legal protections with public interest objectives.