Improving access to patented medicines: are human rights getting in the way?

This article examines the value of human rights arguments in institutional, activist and doctrinal settings in reducing the access gap to patented medicines. Reliance on the human right to health to moderate patents ignores the source of the problem—the political moralism at the heart of the international human right to health and excessively technical decision-making in patent law that have purged reflexive spaces that might have better aligned with the protection of human rights. Far from triggering meaningful intervention, the international human right to health functions as a placeholder, diverting attention away from greater ambitions of justice over current incentive structures around patented pharmaceuticals. The point is not that we should not limit patent rights; it is that we cannot significantly do so by using human rights thinking alone without retooling the patent system. The article ends with a proposal for patent impact assessments as one way to explicitly include consequential reasoning in the grant and exploitation of patent rights.