Patent rights, access to medicines, and the justiciability of the right to health in Kenya, South Africa and India

This chapter examines how the national courts in three developing countries (Kenya, South Africa, and India) have addressed the tension between patent rights and the right to health in some of the cases litigated before them. National courts in developing countries are increasingly being confronted with disputes involving tensions between the enforcement of patent rights and the enjoyment of the right to health. As a result of the WTO’s Agreement on Trade Related Aspects of Intellectual Property Rights, developing countries that are members of the WTO are required to provide patent protection for pharmaceutical products. These patent rights however create a tension between the rights of pharmaceutical companies that own patents on essential drugs and the right to health of poor patients who cannot afford to pay for some of these patented drugs. The chapter is structured into three main parts. Part one examines the nature of the relationship between patent rights and the right to health while part two deals with the justiciability of the right to health in Kenya, South Africa, and India. Part three provides an analysis of how the national courts of these three developing countries have adjudicated some of the pharmaceutical patent cases involving tensions between the right to health and patent rights.