Pharmaceutical Patent Law In-the-Making: Opposition and Legal Action by States, Citizens, and Generics Laboratories in Brazil and India

Abstract

After the first patent laws on inventions were enacted in the late eighteenth century, parliaments, governments, institutions, and medical professions endeavored to limit or suspend the extension of monopolies on remedies, in the interests of public health. In 1844 the French parliament, against the government’s advice, prohibited patents on medicines for a century. In this respect it followed the line of the Académie de Médecine, which at the time was fiercely opposed to monopolies on medicinal remedies. After 1944, when pharmaceutical processes could again be patented in France, the government instituted a “special license” justified in the name of public health. This measure granted the Ministry of Health the authority to resort to such a license if it deemed that medicines were not sufficiently accessible in terms of price, quality, or quantity (Cassier, 2000). Despite the early internationalization of patent rights, via the Paris Convention of 1883, many other states also excluded medicines from patenting. This was the case for instance in West Germany, until 1968, and Japan, until 1975. The developing countries of interest to us here, Brazil and India, likewise opted for the nonpatentability of pharmaceutical products, respectively, in 1945 and 1970. In 1994 a new phase of globalization of intellectual property (IP) was, however, initiated with WTO trade regulations that extended 20-year patents on medicines to all member countries (May, 2000).