A re‐evaluation of the framework for the protection of patents, women’s health in Nigeria and the issue of accessing pharmaceutical innovation in Africa: Designing strategies for medicines

Abstract

The objective of this study is to make a case for Nigerian women to have access essential medicines in light of patent protection of pharmaceuticals. Consequently, this study argues for an improvement of women's access to medicines within the context of patent law and rights, the available flexibilities in the international IP regime of the Trade Related Aspect of Intellectual Property Rights (TRIPS) Agreement and Nigeria's national patent system. Towards this goal, the article makes the point that patent law and its exclusive rights, both the TRIPS Agreement and national law of Nigeria, do not exist in a social welfare vacuum. The legal text of patent law, which confers rights on inventors when enforced, translates to many other things outside the sphere of property rights; indeed, it can be a matter of life and death. It is argued in this regard that patent right could, in effect, interfere with access to medicines and therefore, the right to health and prospects for human development. This study adopts a doctrinal methodology to examine, analyse, and evaluate the issues that have arisen in the context of patent protection of pharmaceuticals and its effect on access medicines. It concludes that while the hindrances to accessibility of essential drugs in Nigeria are multifaceted and demand a multidimensional approach for a lasting solution, the TRIPS flexibilities are significant means for addressing the challenges of affordable access to important health treatments within the context of patent law. However, it is emphasised that utilising the flexibilities will require that Nigeria's patent system is strategically designed to take full advantage of the available exceptions, safeguards, and options.

Respecting, protecting and fulfilling the human right to health

“…Furthermore, the duty to protect human rights, it can be argued [ 44 , 45 ] entails the responsibility to avoid and mitigate any adverse human rights impact that non-state entities such as pharmaceutical companies and their business activities may cause or contribute to, and is linked to their operations, products or services [ 26 ]. Positively, pharmaceutical companies can support the state to fulfil, respect and protect the right to health by providing the means for the realisation of the right to health [ 46 ].…”