Analysis of legal mechanisms to guarantee access to essential medicines protected by pharmaceutical patents

Abstract

Due to the regulations on patents that fall on essential and basic drugs, a conceptual analysis of the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) is proposed on the right to health and access to essential medicines. In addition, the existing conflict in the weighting of private and public interests reflected in the TRIPS as well as access to essential medicines as a benefit derived from the right to health are addressed in this paper. As a result, there seems to be a lack of protection for populations with limited economic resources due to the legal monopoly, authorized by said agreement. Using a quantitative methodology based on a bibliographical review, this article proposes an approach to the main problem consisting of the effectiveness of Colombian legal mechanisms for low-income populations to guarantee their access to medicines, such as the tutela action, compulsory licenses, price regulation and public health policies. Additionally, as said conflict occurs in other developing countries according to the analogous legal and socioeconomic context between them, a comparison is made between the proposals and alternatives carried out by these States.

The jurisprudential development on the Right to health and the protection of TRIPS has generated a conflict that affects access to essential medicines for low-income populations. Although alternative mechanisms such as voluntary and compulsory licenses, or even price regulation, have increased access, the tutela action continues to be the main alternative to guarantee access to medicines due to its limitations and deficiencies.