Perhaps nowhere is the tension between the need to provide incentives for research and development into new medicines and the need to make medicines available more present than in relation to pharmaceutical patents, argues Jayashree Watal

In the chapter “Public Health, Intellectual Property Rights, and Developing Countries´ Access to Medicines” in the book “China´s Influence on Non-Trade Concerns in International Economic Law,” Jayashree Watal takes the readers on a journey into the realm of two - at the first glance - conflicting worlds: intellectual property rights and public health. The common presumption is that these two areas are in a state of an inherent conflict. The regime of individual intellectual property rights is designed to remunerate and protect innovative and novel ideas. For this reason, intellectual property rights grant inventors often wide-ranging exclusive rights to make, use, sell, distribute or import patented products. In the case these patented products are represented by medicines – the results of privately funded pharmaceutical research – the question arises whether the system of intellectual property rights might not represent an obstacle for the access to medicines. Vulnerable people in developing countries with few financial resources might only barely afford to buy expensive medicines. As Jayashree Watal illustrates in the chapter, these issues, and fears related therewith are real, but solutions are at hand. The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs), a constituent part of the WTO framework, includes not only provisions aiming at protecting intellectual property rights, but also certain exceptions and flexibilities that might be used and applied especially in cases concerning public health. As an international agreement, the TRIPs agreement is the result of negotiations between developed and developing countries. The issues concerning public health and access to patented medicines were addressed especially during the famous Doha round, while several concessions could be negotiated especially for the least developed countries (LDCs). It remains to be seen whether traditional flexibilities enshrined in the TRIPs Agreement will be sufficient in the future or whether certain new, innovative, forms of flexibilities should not be introduced to guarantee even more effective access to medicines.