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Social justice perspective for compulsory patent licensing to increase access to medicine: The case for South Korea
Tuesday, November 3, 2015
Legal disputes over compulsory patent licensing to increase access to medicine are increasing. However, the lack of guidance makes it difficult for low- and middle-income countries (LMICs) to use this TRIPS flexibility effectively. Given that this issue is closely related to the conflict between patent protection and access to medicine, which is an essential element of the right to health, a social justice perspective may provide a good guidance for administrative or judicial decisions on compulsory licensing to increase access to medicine in LMICs. A social justice perspective combining utilitarian, social contract and human functioning approaches would require LMICs to perform a balancing test, focusing on the benefits to the least-advantaged and the basic capabilities of human function. Specifically, this perspective suggests that the balancing test should consider: whether a compulsory license is necessary to ensure the basic capabilities of human functioning, whether it aims to increase access to the treatment of rare diseases, whether it is necessary to protect the health of minority groups such as children, women and the aged, whether alternative medicines are available that are substantial and economic, and whether fast, effective and sustainable alternative measures are available to increase access to the medicine concerned. This social justice perspective would suggest that, regardless of whether the need for compulsory licensing was urgent or not, the Korean Intellectual Property Office should have granted compulsory licenses to increase access to leukemia and antiretroviral drugs between 2003 and 2009, as recommended by the National Human Rights Commission of Korea.
Learning Areas:
Ethics, professional and legal requirements
Public health or related laws, regulations, standards, or guidelines
Learning Objectives:
Discuss why social justice perspective should be considered by low- and middle-income countries (LMICs) when they grant compulsory patent licenses to increase access to medicine or for a judicial review of such licenses granted.
Identify key factors to be considered by LMICs granting compulsory patent licenses to increase access to medicine from a social justice perspective combining three approaches - utilitarian approach, social contract approach and human functioning approach.
Discuss the Korean government's rejection to grant compulsory licenses to increase access to medicines for the treatment of leukemia and HIV/AIDS from such combined social justice perspective.
Keyword(s): Law, Social Justice
Presenting author's disclosure statement:Qualified on the content I am responsible for because: I am a recent S.J.D. graduate who has been doing a research on this topic for my dissertation. I also have a LL.B. and LL.M. and worked as an attorney on the issues of intellectual property law in South Korea for six years before my S.J.D. study.
Any relevant financial relationships? No
I agree to comply with the American Public Health Association Conflict of Interest and Commercial Support Guidelines,
and to disclose to the participants any off-label or experimental uses of a commercial product or service discussed
in my presentation.
