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Seton Hall Law Review






Historic tensions have pervaded the alliance of intellectual property's ill-fated accord with trade. The intersections of the alliance have impacted access to medical technologies resulting in plaguing public health with disastrous consequences in select parts of the globe, the first of which was perhaps most notably seen during the HIV-AIDS crisis at the turn of the century. At this time, WTO’s sacrosanct norms from the accord between trade and intellectual property rights essentially force African countries to choose between international trade sanctions, and saving thousands of lives by allowing exceptions to patent rights. While much has been written about global public health, especially post-pandemic, not much or perhaps more accurately, not enough has been said about the consequences arising from the ill-fitting accommodation of intellectual property rights into the trade regime and its impact on medical technology. Even less has been written about the history of the alliance and how it was fated to affect global public health right from conception, leading to a loss of access to medical innovations globally.

This paper’s focus is to examine the historic accord to learn lessons from the past. The paper starts with the rationales generally offered for the initial shift from viewing IP as a matter of domestic sovereignty to its inclusion as a cornerstone within the larger international trade regime. It then delves into an examination of how it resulted in reframing global norms which in turn contributed towards a top-down assertion of increasingly expansive IP norms in the name of global harmonization leading to more patents, less innovation impacting global public health. Such a reframing, the paper asserts, has resulted in two distinct consequences. The first is an outsourcing of policy positions with scant regard to the ability of local realities to accommodate the outsourced position; the second is how IP norm discourses are constrained to boundaries imposed by the trade lens. In both instances, true innovation that can positively affect public health is a significant casualty by virtue of the simultaneous perception of health care by international trade norms both as an exception as well as a priority dictated by the power dynamics that drive international trade.

The paper concludes by outlining the need for an alternative framework that posits public health in the front and center with a view to create a workable mechanism to result in global health care equity.

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Seton Hall University School of Law

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