Introduction

It would be difficult to conceive of a world where the medicines necessary to treat the world's most prevalent diseases were not protected by patents. The patent system is so entrenched in the healthcare industry (particularly in the pharmaceutical sector) and the practice of applying for patents to protect the fruits of biomedical research so ingrained, that anyone involved in the public health innovation cycle of discovery, development and delivery must find a way to traverse the increasingly complex patent landscape. While some countries may be freed from patent fetters if they lack relevant patent legislation or if relevant patents have not been filed or granted, the number of countries in this category is ever decreasing and those that remain untouched by patent monopolies are likely to lack the capacity to undertake research or to manufacture medicines. Yet it has been explicitly stated in some of the highest international policy forums that intellectual property rights do not and should not prevent member states from taking measures to protect public health. The Intergovernmental Working Group on Public Health, Innovation and Intellectual Property (‘IGWG’) of the World Health Organization (‘WHO’) has stated as much in paragraph 20 of its draft Global Strategy on Public Health. The question that needs to be addressed is how to achieve this end of protecting public health whilst at the same time maintaining the incentive to innovate.