Page 129 - KDU Law Journal Volume 4 Issue 2

KDU Law Journal Volume 04 Issue II
September, 2024
According to Roscoe Pound, Law is a social engineering phenomenon;
there should be a balance between the competing interests in the society.
There are three types of legal interests namely Private Interests, Public
Interests and Social Interests. Right to Health is an essential social
interest and it is necessary to uphold the balance with Right to Patent
during a pandemic period. As engineers construct new constructions
similarly, social engineers are required to reveal the type of methods in
the society that provides maximum betterment and minimum friction
by balancing Right to Health and Right to Patent.

‘‘Pound thought that the adjustment competing interests with
minimum friction and waste had a philosophical value’’ (1940:80)8 22

Small patents, voluntary license, compulsory license, doctrine of
exhaustion, business plans, competition of the market and some
business strategies play a major role to keep balance between Right to
Health and Right to Patent in the modern world for the best interest of
the people. It minimizes hindrance to access to medicines. Article 31 of
the TRIPS agreement provides some exceptional circumstances which
other people are able to use patented products without authorization of
the rights holder. COVID-19 was a national emergency; it can be taken
as an exceptional opportunity to use patented products without the
authorization. Section 17 of the Doha Declaration also recognized
23
the importance of Health. To stop the deadly worldwide outbreak, the
24
U.S. Department of Health and Human Services’ Biomedical Advanced
Research and Development Authority has partnered with multiple

22 Suri Rathnapala”Jurisprudence, Cambridge University press, Third Edition(2017)
23 Where the law of a Member allows for other use7 of the subject matter of a patent without
the authorization of the right holder, including use by the government or third parties autho-
rized by the government, the following provisions shall be respected: (h) the right holder
shall be paid adequate remuneration in the circumstances of each case, taking into account
the economic value of the authorization;
24 We stress the importance we attach to implementation and interpretation of the Agreement
on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) in a manner
supportive of public health, by promoting both access to existing medicines and research
and development into new medicines and, in this connection, are adopting a separate
Declaration.
law.faculty@kdu.ac.lk
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