Copyright © Françoise Herrmann
Humanitarian action is historically connected to the contractual aspects of patents, that is, the right conferred upon the inventor or his assignees to exclude others from using or marketing the invention without a license or other sort of permission.
Indeed, a debate exists since the end of the 19th century concerning the patenting of medicines. Initially, from 1850 to the 1960s, at least in Europe, both food and pharmaceutical products were excluded from patenting rights. Early legislators believed that such rights would be in conflict with the public health interest. That is, the exclusive rights conferred upon inventors and their assignees includes setting prices, and thus the potential to bar access to products affecting the well-being of people on a large scale.
However, in the 1960s and 70s, pharmaceutical products became patentable, albeit with special mandatory licensing clauses, still in an effort to protect the public health interest.
Today, pharmaceutical patents constitute the largest sector of patenting activity in both the United and Europe. And the situation feared by 19th century legislators has in many cases played out, in the third world and to a lesser extent in the rest of the world.
Humanitarian organizations such as Doctors Without Borders together with many players across a wide spectrum of public and private activity relentlessly raise the issue of patented medicine to the forefront of public debate (DWB 2015). And it is probably fair to say that a long history of strife and betrayals of the public health interest now exists.
ReferenceDWB (2015) - Doctors without Borders – The cost of medicine: A special report