5. Patents and the Right to Health

Because of the industrialised nature of modern society, the implementation of many rights protected at international and national law imply the provision of patented products and products manufactured by a patented process.(13) The health of the individual may depend on the provision of certain medicines or drugs which are protected by a patent and the manufacture and sale of which are legally monopolised by the patent holder. It is the potential conflict between the rights of the person to receive food or medicine and the right of the patent holder to exercise a monopoly over the patented product/process that defines the extent of the competing rights. The conflicting duties of the state – to protect the rights of the patent holder and the rights of the patient – define the obligations of states under international law.

These conflicting duties gave rise to the “flexibilities” within the original TRIPS agreement as it was seen that individual states would have to determine for themselves in what ways the conflict between the different rights were determined.