Patents and Pharmaceutical R&D: Consolidating Private–Public Partnership Approach to Global Public Health Crises

Journal of World Intellectual Property
Vol. 13, No. 4 (July 2010), pp. 556-580

Intellectual property (IP) is a reward and incentive market‐driven mechanism for fostering innovation and creativity. The underlying, but disputed, assumption to this logic is that without IP, the wheel of innovation and inventiveness may grind to a halt or spin at a lower and unhelpful pace. This conventional justification of IP enjoys, perhaps, greater empirical credibility with the patent regime than with other regimes. Despite the inconclusive role of patents as a stimulant for research and development (R&D), special exception is given to patent's positive impact on innovation and inventiveness in the pharmaceutical sector. This article focuses on that sector and links the palpable disconnect between the current pharmaceutical R&D agenda and global public health crises, especially access to drugs for needy populations, to a flaw in the reward and incentive theory of the patent system. It proposes a creative access model to the benefits of pharmaceutical research by pointing in the direction of a global treaty to empower and institutionalize private–public partnerships in health care provisions. Such a regime would restore balance in the global IP system that presently undermines the public‐regarding considerations in IP jurisprudence.

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