Patents And Human Rights : Conflicts with Access to Medicine in Pandemics, and COVID-19 Recommendations

Sammanfattning: Since the last century, many wars and violations of Human Rights were direct reasons that set the pace to develop Human Rights laws, especially after the end of World War II and the holocausts associated with it. One of the critical Human Rights is that ‘to life’, relating to the right ‘to health’, hence the fundamental accessibility to healthcare services and products. Nonetheless, the last decades have witnessed a significant growth in pharmaceutical patents leading to increased drug prices. Overshoots in prices prohibit access to medicine. Disputes between States, pharmaceutical corporations, patients, and investors have occurred, some of which were not purely related to monetary aspects but also to Human Rights, such as the right to ‘access to medicine’. These disputes are controversial. The applicable legal regimes are patent laws (e.g., the TRIPS Agreement) and International Human Rights Law (IHRL) including the European Convention on Human Rights (ECHR), European Social Charter, and more. However, it is up to the courts to decide on whether to consider IHRL in the legal decision process. The question turns to whether they consider the two regimes to be intersecting or independent. This thesis tackles the area of intersection between patent law and the right to ‘access to medicine’ in cases of pandemics such as inter alia HIV/AIDS and COVID-19. It investigates whether the right to ‘access to medicine’ exists as a human right by law, to jump to examine whether solutions like Compulsory Licenses (CLs) and patent exceptions are suitable. Then it answers the question whether there should be defragmentation of laws or not. The work analyzes available caselaw to seek a balance between patent laws and the human right to ‘access to medicine’ during pandemics. Caselaw shows that the conflict makes the overlap of laws confusing and in need of determining the set of relevant provisions in the applicable norms. The question on defragmentation in answered by focusing on Section 5 of the TRIPS Agreement and some provisions in IHRL instruments. The thesis proposes a defragmentation of applicable laws that aids in looking at previous solutions to reach the sought balance, and it sheds the light to give recommendations. The work finally recommends being proactive, for times of pandemics like the COVID-19 outbreak, and working on the realization of a unified and harmonized EU patent law to keep up to the objective of delivering quality vaccines/antivirals, on time, within budget, and with supporting applicable laws.