Challenging Coerced Conformity in Pharmaceutical Patent Law: Promoting a Holistic Review

Abstract

This opinion argues that jurisdictions should adopt a more holistic approach to pharmaceutical patents in order to increase coordination between the law and the broader objectives and priorities that should guide health and pharmaceutical policy. The opinion uses Hong Kong as an illustrative case study to demonstrate that a system which fails to set out clear policies, aims and objectives for its patent laws often ends up agreeing to TRIPS-plus standards in free trade agreements without any evidence as to the effect of the measures on wider societal interest. The opinion is therefore a call for jurisdictions to take a holistic approach to pharmaceutical patent law instead of simply looking at it from the lens of patent law and to push back against the system of “coerced conformity” which simply transplants IP maximalist measures into local law without even attempting to tailor the measures to suit the local priorities or framework. Such an approach would better place jurisdictions to effectively balance obligations, efficiency, costs and access to medicines for the populace.