Patent Rights and Human Rights: Exploring their Relationships

Abstract

The assessment of the relationship between patent rights and human rights has resulted in several tentative findings, such as by the UN Sub‐Commission on the Promotion and Protection of Human Rights, that there are “apparent” or “actual or potential” conflicts. Also the World Intellectual Property Organization says that “conflicts may exist” between the two. This article, which is based on a Ph.D. dissertation on the right to food and the Agreement on Trade‐Related Aspects of Intellectual Property Rights (TRIPS Agreement), analyzes the relationship between the two, based on an established understanding of conflict in international law, namely incompatible obligations. Also another level of conflict is introduced, namely conflict on the level of prescribed measures in one treaty which impedes the taking of measures prescribed by another treaty. Finally, the article assesses conflict on the level of impact. The findings are that strict legal conflict between the two is difficult to establish, but that there are serious concerns regarding their implementation. Developing states should make use of all the flexibilities that the TRIPS Agreement provides.

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