Maximising Utility: Applying Utilitarian Theory to International Patent Law, Emma Perot

Abstract (click to view)


This article attempts to strike a balance between the need of pharmaceutical companies to stay profitable and the need of developing countries to access life-saving medicines. It is proposed that this balance can be achieved by applying a utilitarian approach to patent law, taking into consideration how best to maximise ‘value’ for both parties. There has been much debate on whether pharmaceuticals should be subject to patent law. The arguments for and against this protection will be examined, and it will be argued that it is not plausible to abandon intellectual property protection due to the large investments made by these companies into research and development. With this in mind, it will be suggested that in order to address the concerns of both parties, a distinction should be made for drugs for endemics and drugs for worldwide consumption. Compulsory licensing should be abandoned for the former to provide incentive for research and development that is much needed. Additionally, governments and charitable organisations should collaborate to contribute to the funding of these drugs. Differential pricing should be applied to drugs for worldwide consumption, as there is sufficient research and development incentive for these. Differential pricing will lead to and increase of sales and greater accessibility to medicine.