Should All Drugs Be Patentable?: A Comparative Perspective

Cynthia M. Ho · 17 Vand. J. Ent. & Tech. 2

Abstract

Although there has been substantial discussion of the proper scope of patentable subject matter in recent years, drugs have been overlooked. This Article begins to address that gap with a comparative perspective. In particular, this Article considers what is permissible under the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), as well as how India and Canada have utilized TRIPS flexibilities in different ways to properly reward developers of valuable new drugs, while also considering the social harm of higher prices beyond an initial patent term on drugs. This Article brings valuable insight into this area at a critical time. Many have noted that the industry is in a crisis because, despite exponentially increasing expenditures, the number of new drugs produced has been stagnant. Moreover, a predominant number of the slim pipeline features drugs that are not highly innovative. At the same time, the industry and some academics are seeking to increase protection of drugs in the United States and beyond, which could further exacerbate existing problems.