Term Paper: Compulsory Licensing of Patents

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[. . .] All of these opinions substantiate the fact that by transforming their patent systems and changing their economic systems into market-oriented economies along with free trade structures to back the financial and monetary system, the under developed world will promote the flight of the desperate foreign capital it needs for its technological growth and development in the pharmaceutical sector as well as other sectors that are vital for growth and development (David, 1999).

The intellectual copyright of biotechnology and pharmaceutical products has been accelerating at a rapid pace. This is because of numerous legal verdicts passed by the international courts, multilateral and bilateral treaties and agreements. In order to gain unmatched profits and make the most of the legal, technological and economic climate of America, several European corporations have been either considering relocating or have already transferred their biotechnology corporations to the United States of America. This move can be attributed to that fact that the United States of America exploited the Uruguay Round of the GATT as an opportunity for the protection of Intellectual Property Rights laws to incline heavily in its favor. This can be observed from the fact that the protection and safeguard of biotechnological discoveries had been brought up in the GATT discussions within a limited framework, which was of the trade-associated features of intellectual property rights agreements (David, 1999).

In order to seize the unmatched profits that lie within the domain of biotechnology and the production and sale of pharmaceutical products, the developed world constantly positions the safeguard and protection of intellectual property rights of pharmaceutical products at the top of its personal international business agenda. Within the legal structure of the GATT as well as the WTO system, the developed world, and United States of America in particular, has effectively attached the gratification of its WTO membership -- along with its helper-benefit of unbiased and equal trade in merchandise as well as services -- as well as -- along with Member States' accord to stand by international system of the patent laws of pharmaceutical products along with other products. Furthermore, the member states are required to allow the patented pharmaceutical products superior safeguard and protection against piracy by fulfilling the obligatory accord on the subject of "Trade-Related Aspects of Intellectual Property Rights" also known as "TRIPS (Reichman, 2004)."

Trade-Related Aspects of Intellectual Property Rights" or "TRIPS" had been intended to reinforce and synchronize international patent laws, in particular the pharmaceutical products and other biotechnology products, with the declared principle of the contract being to decrease misrepresentations and obstructions to global trading system, in view of the requirement to endorse effectual and sufficient safeguard and protection of intellectual property rights (Reichman, 2004).

The rightful Position of the underdeveloped world on the subject of compulsory licensing of Pharmaceutical Patents

Several under developed countries have objected to what they rightly consider the developed world's unfair misappropriation and exploiting from microplasm obtained in the underdeveloped world. The underdeveloped world has been worried by the customary procedures of pharmaceutical corporations, located in the developed world, taking advantage of the remedial medicines generated by customary curers in underdeveloped world, to gain global profits in billions of dollars. The underdeveloped world makes its case that the pharmaceutical companies of the developed world have been making substantial profits from capital investments founded on the misuse of the undeveloped world's germplasm, devoid of any responsibility to give back anything to the custodians of the information (Kevin, 2002).

To energize the process of claiming their rights, as well as, to create more awareness and eventually deprive the western pharmaceutical companies to steal their wealth, the third world has labeled this practice as "bio-piracy," as well as, "bio-colonialism." Quite a few developing countries have started claiming that their natural resources of healing medicines are being stolen by the pharmaceutical companies of the west. The process adopted by the pharmaceutical corporations located in the west has been that first the intellectual resources of the underdeveloped world are obtained free of charge, as "raw materials," then these "raw materials" are converted and purified in the laboratories of the developed world, and subsequently become protected by patent laws under the established international trade systems. The western pharmaceutical merchandises generated from the natural assets of the "side-lined underdeveloped world" are then exported with much higher costs to these very underdeveloped countries. This is where these pharmaceutical products greatly help only the wealthy and influential for their proposed medical objective or price. Consequently, the under developed countries have been unwilling to expand the compulsory licensing of Pharmaceutical patent protection to these resources and other products exported from the developed world (Kevin, 2002).

Critics in the underdeveloped world have been inquiring about the drift of the reimbursements of global intellectual property protection, which have been a major faction of the complete "free trade" package. They fear that all the benefits might be tilted to the advantage of the nations, civilizations, and states of the developed world. Furthermore, the co-conversion of conventional medicinal information gives the impression to be determined by reduced profit that fears to be the loss of the underdeveloped world. For case in point, the Eli Lilly Corporation employed Madagascar's wild rosy periwinkle to grow "wonder drugs" like vinblastine, as well as, vincristine for the cure of pediatric lymphatic leukemia, as well as, Hodgkin's ailment. These pharmaceutical products produce millions of dollars in profits each year for the Eli Lilly Corporation; Madagascar allegedly receives nothing from them. Simultaneously, the underdeveloped countries, import germplasm in the form of extremely costly pharmaceutical products. The underdeveloped has been offended by the fact that the genetically reproduced pharmaceutical products from the developed world have been protected and safe guarded by international patent laws, at the same time the germplasm of the underdeveloped world is being obtained free of charge. To illustrate a case in point, the Indian government has formally challenged the patent, on three different occasions claiming that the ability of the western corporations to patent many indigenous plants produced in India is unlawful; for example, one patent that has produced anger has been a cure for diabetes comprising bitter gourd, eggplants, as well as, jamun, the fruit of the rose apple tree. It has been in the public domain in India for several centuries; however, once again there has been an effort to patent this medicine. However, the direction of the international court inclined heavily in favor of the west, in particular the United Sates of America and the appeal on all the three occasions had been overturned (Kevin, 2002).

The under developed world has been extremely receptive of the moves of the developed world relating to the intellectual property rights of the pharmaceutical products. In fact the underdeveloped world has often been extremely antagonistic towards the developed world's Intellectual Property Regimes, for the reason that they consider their objective is to strengthen the economic authority of the developed world, as well as, to relocate the wealth and the riches from the underdeveloped countries to the developed ones. In line with the views of the underdeveloped world, the patent system of the developed world assists in protecting their technological advantage and, concurrently, dispossesses the underdeveloped world of the much-required technological transfers. Since the developing countries have not the major producers of intellectual property, they have little inducement to forcefully preserve it. The developing countries assert their case that the weak protection is reasonable on the rationale that the underdeveloped world requires utmost exposure to Western intellectual goods for its domestic growth and development and that severe standards of safeguarding and protection can be incapacitating. Therefore, several scholars believe and strongly assert that the worth of the intellectual property system to underdeveloped countries is still contentious, and that the under developed countries could undergo extreme hardship for the reason of rising reliance on foreign copyrights with extremely little countervailing profits (Keith, 2003).

The intellectual property system is operated under enormous costs that are beyond the reach of many underdeveloped nations. Therefore, several underdeveloped countries have also taken this subject of the gigantic expenses connected with generating and then upholding a complicated patent system. Since the underdeveloped world has been overwhelmed by insufficient capital, majority of the governments in the undeveloped states maintain that they are unable to sustain the costs of intellectual property protection, together with the secure drafting, as well as, the loss of inexpensive options to lawful pharmaceutical products. In any case, the instant temporary consequence of a strong patent law system will be advanced royalty expenditure from the underdeveloped world to developed countries. The comparative price of this royalty expenditure is prone to be aggravated by fluctuations in the exchange rates of the foreign currency of the respective undeveloped countries (Keith, 2003).

Even though the developed world believes that illegal reproduction of pharmaceutical products offers no genuine economic advantages, the developing countries have been inclined to believe that illegal reproduction of the intellectual property of pharmaceutical products increases economic growth and development. In several instances,… [END OF PREVIEW]

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