Thursday, March 4, 2010

What is implied by a patent under international law?

An interesting blog and responses by Simon Lester on his International Economic Law and Policy blog HERE. It asks whether there is "anything in TRIPS that would restrict the ability of a state to set price controls on patented pharmaceutical products."

It seems to me that there is some logic to saying that the minimum standards for a "patent" under international law (including TRIPs) include some ability for the owner to potentially profit from it - and (to be blunt) the countries that have signed on to TRIPs had at least that in mind. But that is still a long way from concluding that no price controls are allowed at all.

Another interesting question (to me, anyway ;) ) is whether it matters what state is doing the price controls. It seems to me that whether a price control is TRIPs-compliant would be a highly factual question - i.e. how is the price control being implemented, on what grounds, is it across the board or on a drug by drug basis, and on what basis is the price ceiling set? And if so, does it matter whether the country is poor or rich? Wracked by disease (say, AIDS) or relatively healthy? Is there more unwritten leeway for a least developed country to implement price controls than, say, Canada?

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