Patent

In his illuminating book ‘Patents, human rights, and access to medicines’, Emmanuel Oke provides a lucid exposition of the intersection between patent law and the human right to health, through an exploration of judicial engagement with this intersection by courts in three developing countries: India, Kenya and South Africa. The book represents a thorough and comprehensive evaluation of a vitally important subject that has not received the kind of sustained scholarly attention that Oke bestows on it. In this post, I shall review chapter 6 of the book, titled ‘India as a case study’.

The book is a must-read for policymakers, governments, regional communities, students, researchers, health practitioners and anyone that may be interested in 'the access to medicine for all' campaign. The depth of analysis and critical thinking renders the author's arguments very persuasive and practical. It will stimulate the readers to view patent law and policy as a ‘work in progress’ rather than being ‘cast in stone’ and get them thinking about how it can be further improved. The book is highly recommended.

In the book, I critically examine the nature of the relationship between patent rights and the right to health under international law. I equally critically evaluate how tribunals and courts in Kenya, South Africa, and India address the tension between patent rights and the right to health. Crucially, the book highlights the strategic role that national courts can play in facilitating access to affordable medicines.

By highlighting the governance practices that enabled India and Brazil to circumvent and minimize the oppressive TRIPS regime, Vanni offers a critical perspective with key implications for scholarly work on the politics of intellectual property in marginalized contexts. Her emphasis on local approaches to law-making is certainly instructive for the interdisciplinary literature on intellectual property that tends to focus on foreign appropriation of traditional knowledge and illegal efforts such as piracy and counterfeit production to subvert the international regime.

Amaka Vanni already proffered answers to the foregoing nagging questions, and more, albeit within the broad conversation around pharmaceutical patent and access to essential medicines and health technology in the Global South. She undertook this task in her well-researched and exceptionally captivating monograph: Patent Games in the Global South: Pharmaceutical Patent Law Making in Brazil, India and Nigeria (Hart Publishing 2020). In the book, structured into 7 strong chapters, she critically unpacks, engages and beautifully links the role of states and non-states actors in international patent law-making with the realities of patent legislation and policy formulation, as well as pharmaceutical innovation and R&D in Brazil, India and Nigeria. 

A central point highlighted in Vanni's analysis comes in the title of the chapter itself, “the Juridical State”. Brazil's social and political conflicts are for the most part moderated, and often even defined, by the role of courts. Hence, this centrality of the Judiciary in legal-political disputes is an unavoidable aspect of the analysis (and particularly as this was perhaps not always the case in the country's history). In IP and health policy, the influence of the Judiciary is crucial, where certain courts may take decisions on the validity of pharmaceutical patents - directly affecting conditions of competition and access to medicines - and superior courts may decide upon the constitutionality of aspects of laws and regulations that may either legitimize or fully impede the implementation of public health policies in IP matters.

Dr. Amaka Vanni is a legal scholar, consultant and documentary filmmaker. Her work lies at the intersection of international economic law, development, and global governance.