Washington International Law Journal


Mary Atkinson


A fundamental purpose of patent law is to encourage the development of new inventions by granting to the inventor exclusivity in the marketplace for a limited period of time. Patent law in the area of pharmaceuticals is complicated by the responsibility of governments not only to encourage research and development of new drugs, but also to assure that new drugs are widely available and affordable, as well as safe and effective. Governments, influenced by market and political philosophies, design patent laws and drug regulatory schemes to meet these responsibilities. The United States has a well-developed pharmaceutical industry and private-payer health care, and thus has very strong patent protection for pharmaceuticals. Canada, on the other hand, has a relatively small pharmaceutical industry and government-payer health care. Canada, therefore, weakened the patent rights of pioneer drug companies by instituting compulsory licensing and price controls on brand-name drugs. Despite these fundamental differences, the North American Free Trade Agreement and the General Agreement on Tariffs and Trade have brought near uniformity to the patent and regulatory schemes of both countries. Pioneer drugs have made great strides in increasing longevity and improving quality of life. The challenge is to make these new drugs affordable. Governments need to find creative solutions to this challenge while maintaining strong patent protection for pharmaceuticals so as to ensure the continued development of new medicines. Given the political and economic realities in both the United States and Canada, each government has fulfilled its obligation to the public to develop a reasonably balanced system of patent protection for pharmaceuticals.

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