The ‘Myth’ of Patent Justifications: Triumph and Failure Dichotomy in the North and South

Abstract

The preceding chapter “Evolutionary Trajectories of Patents and the Politics of Exclusion in Sub-Saharan Africa” has revealed that the arguments to protect and enforce pharmaceutical patent rights are anchored on both classical and neoclassical theories for securing private proprietary interests over knowledge-based products and processes. Theories proffered in defence of the patent system include natural rights theory, reward theory, contract/disclosure of secret theory, incentive theory, prospect theory, race-to-invent theory, and the rent-dissipation theory. These theoretical assumptions have been used by scholars to justify the prevailing international patent regime and its reflections in the domestic laws of both developed and less developed countries alike. Particularly, the natural rights theory in tandem with the incentive theory played a crucial rhetorical role in the strategy of industry groups to convince governments in developed countries to demand strong patent systems across the globe. The TRIPS Agreement and its underlying theories have thus effectively secured standards of patents similar to those adopted in industrialized countries. The consequence is that the justifications for patents contribute to perpetuating the notion of the applicability of a one-size-fits-all pharmaceutical patent protection regime across countries/regions.