MINISTRY OF JUSTICE MINISTRY OF EDUCATION AND TRANING HANOI LAW UNIVERSITY LE THUY DUONG 450243 INTERFACE BETWEEN PATENT RIGHT AND HUMAN RIGHT TO LIFE AND HEALTH IN LIGHT OF INTERNATIONAL LAW AND SUGGESTIONS TO ‘VIETNAM INTELLECTUAL PROPERTY LAW BACHELOR’S THESIS Hanoi- 2024 MINISTRY OF JUSTICE MINISTRY OF EDUCATION AND TRANING HANOI LAW UNIVERSITY LE THUY DUONG 450243 INTERFACE BETWEEN PATENT RIGHT AND HUMAN RIGHT TO LIFE AND HEALTH IN LIGHT OF INTERNATIONAL LAW AND SUGGESTIONS TO VIETNAM INTELLECTUAL PROPERTY LAW Major: INTELLECTUAL PROPERTY RIGHT LAW BACHELOR’S THESIS SUPERVISOR LL.M PHAM MINH HUYEN Hanoi - 2024 STATUTORY DECLARATION I herewith formally declare that I myself have written the submitted Bachelor’s Thesis independentiy, the conclusions cand data in the Bachelor's Thesis are truthful and reliable / Confirmation of supervisor Author of Bachelor's Thesis: (signatory) LIST OF ABBREVIATIONS Abbreviations Original terms Availability, accessibility, acceptebility and quality CPTPP ‘The Comprehensive and Progressive Agreement for ‘Trane Pacific Partnership ECHR Economic, Social and Cultural Rights EVFTA ‘The EU-Vietnam Free Trade Agreement ICESCR ‘The International Covenant on Economic, Social and Cultural Rights m Intellectual Propesty TPR: Intellectual Propeity Rights NGOs Non- Government Organizations R&D Research end Development TRIPS Agreement The Agreement on Trade-Related Aspects of Intellectual Propesty Rights UDHR ‘The Universal Declaration of Human Rights UN United Nations WHO World Health Orgenizetion WIPO World Intellectual Propesty Orgenization ‘TABLE OF CONTENT STATUTORY DECLARATION. LIST OF ABBREVIATIONS. TABLE OF CONTENT. The necessity of the Thesis.
Literature review of previous studies releted to the Thesis 3 Academic and practical significance of the Thesis 4 Objectives of the Thesis 5. Research object and resesrch scope of the Thesis. a Structure of the Thesis CHAPTER. GENERAL INTRODUCTION TO THE RIGHT TO PATENT AND HUMAN RIGHT TO HEALTH.1 Overview of Human Right to Health 8 1.11 Intemational Human Right lay.2 Humen Right to health 9 1.1 Introduction to the sight to health.2 The definition of human sight to health, 9 1.13 Access to medicine: « humen sight to health 10 1.4 The elements of naman rights to health and access to medicine 12 1.
Overview of Potent sight 14 1.1 Definition of Patent right 14 1.2 Characteristic of Patent sight 14 1.23 Social theories behind the protection of patent 7 1. Overview of the clash of patent right and access to medicine 20 13.1, The problem of petent pricing and access to medicine in developing.2 The HIV/AIDS pendemic. a 1 3 3 The implementation of TRIPS Agreement 2 CONCLUSION OF CHAPTER I 26 CHAPTER II. INTERFACE BETWEEN PATENT RIGHTS AND THE RIGHT TO HEALTH UNDER INTERNATIONAL REGULATIONS, 27 3.
Analysis of the intesface between patent rights and the right to health under international human sights regime 28 211 The Morel and Meteriel Interests of Authors end Inventors - Art 270) UDHRend Art 15(1) ICESCR.2 Is patent sight a human sight? 32 2.3 The Right to Health 34 2.4Potential conflicts under international lnm en right regime 36 2.2 Analysis of the interface between patent rights and the right to heelth under international IPR regime 37 2.21 Nature of the conflicts between patent sights end the sight to health. 37 ‘The implementation of TRIPS Agreement 39 1 TRIPS Agreement Standard for Patent Protection 4 2 TRIPS impact on access to medicine 2 CONCLUSION OF CHAPTER II 4 CHAPTER IIL. 48 POSSIBLE SOLUTIONS TO BALANCE HUMAN RIGHTS PROTECTION IN THE CONFLICT WITH PATENTS AND RECOMMENDATION TO VIETNAM .1 Methods to leverage Human Rights protection in the conflict with patents 48 3. Intemationel Human Right Law flexibilities 48 3.
Recommendation to Vietnam IP Le in order to harmonize the conflict ‘between human sights protection and patents 7 3. Background of Vietnam Patent Protection. Notices to Vietnam IP Law in order to harmonize the conflict between Tramen sights protection and patents 58 CONCLUSION OF CHAPTER III 6 CONCLUSION. The necessity of the Thesis Overview One of the fundamental Human Rights isthe right to health, which encompasses the fundamental accessibility to hesltheere services and protucts: Howeves, access to medicines has long been «major issue in developing counties.
Expenditure on medicine is one of the major causes for household impoverishment, which takes up 66% of the total health spending Itis, therefore, imperative for governments ofthese counties to facilitate mdioine at affordable prices for their citizens. Nonetheless, esearch on medicine is painstaking process thet deserves legitimate monetary interest for pharmaceutical corporations, which could result in high-priced medicines thet futher impedes access to medicine. Às “nơ other issue so clearly epitomize the clash between lumen rights and intellectual property as access to patented medicine”, fostering innovation through petent sights and enswing access to essential healthcare services through the right to heelth hes become a critical rea of + The background of the conflict Intellectual Property Rights (IPRs) and Human Rights stend es the comerstone segulstions thet heve underpinned the flourishing development of the lumen history insecent centuries. While the protection of intellectual property serves as anincentive fostering the crestion of science, the acknowledgement and protection of human sights then shed light to ethnic end democratic revolution dusing history.
In many international treaties end national constitutions, both property sights and sight to hhealth and life are considered fundamental, These two legal institutions heve been co-existing independently, where the legal foundation for each of these sight were scoursed on, analyzed and implemented in substantive reach. However, in the evolving landscape of IPRs and huznan sights, the respective terrains between these TLR Helfer and 6. Austin, Human rights and intellectual propery: mapping the glabal interface (2011) CUP, g.80, 1 fore-mentioned legal regimes have expanded. As a result, disputes between States, pharmaceutical companies and each of the related patties relating to their legitimate rights, including human rights and IPRs, have arisen ‘The clash between IPRs and hum sa sights has been & subject of raging controversy since the tri between the South African Government and several multinational pharmaceutical companies regarding the newly enacted SA Medicines and Releted Substances Control Amendment Act.
When the HIV/AIDS pandemic broke out, an entiretoviral drugs discovered to teat this virus has been subjected to patent protection, resulting in prices beyond the ability of most residents of the developing ‘world, where the disease was most prevalent, to access them. The conflict thus intensified when 40 pharmaceutical companies decided to sue the South Afican. government for a legislative movement toward improving the sccessbility to essential medicines and reducing drug prices ‘Atthe same time, The Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) represents the biggest supporter of pharmaceutical companies emidst intense controversy during the HIV/AIDS outbreek. The finelizetion of TRIPS in April 1994 works as en importent legal instrument thet acknowledged and encouraged the fruits of humen crestivity, which obliges member states to recognize ptents in all fields of technology, including medicines, for period of 20 years From this moment on, this topic started to received global attention, addressed by smumerous intemetional orgenizetions, non-governmental orgenizetions (NGOs) as wall as States end scholars.
In this cycle of creating new medicinal products, generating profit for investors, end tying to provide patients access to the needed medicine, helting one point would cease solutions to exist for another Itis essential to seek harmonization between patent laws and Human Rights Lew in domestic policy so thet medicines are accessible to human in need while pharmaceutical companies can assure their profit in case of pandemic ‘Thus, all of these are the seasons why the topic: “Interface between Patent Right and Hunan Right to Life and Health in light of international law and suggestions to Tietnam Intellectual Property Law ” is chosen as my Bachelor's Thesis, 2. Literature review of previous studies related to the Thesis, Researchers from domestic and international universities have expressed interest in and attention to the clash between Iuman right to health end patent under international lew. First, regarding the basic notion and defintion of human right, human right to Ihealth, access fo medicine and patent, the bac principles were concisely discuss end introduce in “Humen Rights A Very Short Introduction (Very Short Introductions) by Andrew Clepham,? Intermetionsl Human Rights 4th edition Westview Press, 2013 by Jack Donnelly, “Intellectual Property Law (3rd Eektion, 2009)" by L. Sherman,‘ “The Universality of Intellectual Property Rights Origins and Development” by Peter Dzehos te Second, regarding the analysis of interface between patent xights and the right to health under international regulation, there are different approaches toward how to observe and harmonize the relationship between human xight to health and patent under international lw.
‘Significently, the publication of Holger Hesterm eyer, “Humen Rights and the WTO: ‘The Case of Patents and Access to Medicines" has seeked to answer the question if petents interfere with the right to acess to medicine by examine the conflict in light of microeconomic theory, empisical studies, price effect end justficetions for patent in the conflict to conclude thet patents do interfere with eccess to medicine end possible solutionis seeking through admentment of WTO agreements such as TRIPS to accomodate hunan sights end WTO dispute remoluion methods ‘Andre Chasm, Haman Fights A Vary Shut eroducton (Very Shr erodurtions), New Yes ord Una. Drse, 2007 Jc Dom, ntemational Him Rights, tion, Westview Bess, 2013, +Liel Bey Brad Shemua Đụ Tục ti n, Boperty Lev (3a Eézion, 2009) ` — ` Property Rights: Orighs nd Development”, Universty of Land, Jamy 1998 ° Holgr Hestnmueyer, Hoan Rights and the WTO: Th Case of Prete and Accessto Medicines, 2007 a TaEmmnanuel Kolawole Oks's “Patents, Humen Rights, end Access to Medicines”, the interface is enslysed with a different epproach, which first observe the interface ‘under International Human Rights Lew regime to conclude thet petent sights ought sotto be segarded as humen sights end IPRs, including patent rights, should be made to serve the interests protected by human sights Philppe Cullet in “Patent end medicines: the reletionship between TRIPS and the huơnsn sight to health’® views the conflictin the adoption of TRIPS, pro end post Doha Decleretion, thus conclude that the solution is not to prioritize one sight over the other but on how to intesprete the obligetions under international lew. Other researcher also have different approaches to examine characteristics of the interface, namely, “Intellectual Property Rights vs Human Rights: A Need toRe-Exemine the Reletionship between the Two to Enhance Social Being”, LLM Thesis of Ines Lasié “Pharmaceutical Patents, Right to Health end Access to Essentiel Medicines: A Human Rights Critique’; “TRIPS and medicines ~ Prices, Availability and Health: The effect on India, Thailand, South Afsice end Brezil"! by Felicie Ardenmask Strand, ete InVietnam, the interface have been mentioned by several researchers inhuman sight and IP. “Suinung đột gn quyền con người và quyên sỡ hữu ti tuệ: tiép cân từ tiết ý pháp luật và thực tiến pháp lý" Dby Tran Kien "Pháp luật quốc tẾ về sáng chỗ, iy phép bit buộc và quyền Hiệp cận thuốc & một số quốc ga trên thể gi- Kinh nghiệm cho Việt Nam” 3 by Le Vụ Van Anh, ete, Those researches have dren an adequate picture ofthe relationship between these tro rights under international In, tt also devoted to find « muteble solution to harmonize the confict in Vietnam "mini Kolowol Che, “Petes, Him Rights, and Access to Medicines”, Canbrige Universty Pres, Fobra *EnDgpc Cullet,Patat und Medicines: s The Palatims benreen TRIPS hipandthe Himam Right to Heath, Ibuemational A6 te Roya tints of ematamal Afure 1844), Vo.
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