Pipeline patents and access to drugs: economic and legal aspects deleterious to health economy

Abstract

The creation of the WTO has brought a series of multilateral agreements, including the TRIPS Agreement that regulates matter related to intellectual property rights. The Agreement established a "minimum standard" of protection, including the expansion of the scope of patentability for all fields of technology. Brazil, seeking to be TRIPS complied, went beyond its international obligations and included a mechanism known as pipeline patents: a temporary mechanism through which were accepted patents in fields of technology not previously recognized, including the pharmaceutical sector. 1182 patent applications were filled through this mechanism, among which are several medicines that are fundamental to public health. This article intends to discuss the pipeline patents from two perspectives: health economics and law. From the economic side, this paper presents a study that calculates the higher prices that Brazil paid for AIDS drugs, without any counterpart in investment on R&D. On the side of law, the pipeline patents are against a number of constitutional principles and also international treaties to which Brazil is a signatory. Finally, the article discusses how this mechanism has been handled by different actors of society, focusing on the analysis of direct action of unconstitutionality, proposed in 2009 by the Attorney General's Office in the Supreme Court. The article concludes that the introduction of the pipeline patent mechanism is frontally against the public interest.