A/HRC/11/12
page 8
estimated that people living with HIV will become resistant to their first-line medicine regimens
and will need second-line treatment which can currently cost between 9 and 19 times as much as
first-line medicines.
15. Accessibility of medicines has different dimensions.20 This report specifically considers
the dimension of financial affordability. In this regard intellectual property (IP) laws as they
impact on the affordability of medicines can have a significant bearing on access to medicines.21
16. Current health inequalities regarding access to medicines demonstrate the need for States
to respect their obligations under international law to protect the right to health. This includes
ensuring that their laws and practices, including those related to IP, take into consideration the
right to health and the need to ensure access to affordable medicines to all. This report highlights
some measures that States can take to ensure that their national IP regimes protect the right to
health.
B. Intellectual property laws and access to medicines
17. IP law has an impact on the right to health, as it protects pharmaceutical products. It
regulates the creation, use and exploitation of mental or creative labour and encompasses
copyright, trademarks, geographical indications, industrial designs, layout designs of integrated
circuits, patents and their designs, undisclosed information and trade secrets.
18. Patents confer legal rights on inventors, more importantly negative rights over process or
product inventions. Patentees can, therefore, prevent persons not authorized by them from
making, using, offering for sale, selling or importing the patented invention. Patents create
monopolies, limit competition and allow patentees to establish high prices. While product
patents confer absolute monopolies, process patents lead to relative monopolies.22
19. In regard to medicines, a product patent enables a patentee to set high prices. Higher
standards of patent protection, which can reduce the number of easily granted patents, can
20
Accessibility has four dimensions; first, medicines must be accessible in all parts of the
country; second, medicines must be affordable to all, including those living in poverty; third,
medicines must be accessible without discrimination on any of the prohibited grounds; fourth,
reliable information about medicines must be accessible to patients and health professionals for
them to take well-informed decisions (A/61/338, para. 49).
21
Intellectual property laws can also affect medical research and this can bear upon access to
medicines. The Commission on Intellectual Property, Innovation and Public Health (CIPIH) has
noted that, “There is no evidence that the implementation of the TRIPS agreement in developing
countries will significantly boost R&D in pharmaceuticals on Type II, and particularly Type III
diseases. Insufficient market incentives are the decisive factor.” See footnote 9 above, p. 85.
22
Product patents can create absolute monopolies as they can restrict use of a product. Process
patents only restrict the use of the patented process and therefore a generic version of the product
could be made using an alternative process.
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