Intellectual Property and the Global Crisis of Noncommunicable Disease

This Article reconsiders the drugs-for-the-developing world debate that has taken place in the shadow of free trade liberalization. For the last twenty years, this debate has centered on a supposedly zero-sum conflict between access to drugs for residents of the “third world” and incentives for pharmaceutical multinationals to invest in research and development. Underlying this debate is the assumption that the developing-world health crisis involves primarily a crisis of infectious disease. Because drugs for such ailments lack developed world markets, it is easy to imagine that robust pharmaceutical patents are globally necessary if the poor are to obtain any drugs at all. Global public health reality, however, is quite different. Mortality and morbidity in developing countries are increasingly attributable to those same noncommunicable diseases (“NCDs”) that plague developed countries. Drugs for such conditions already have highly profitable developed world markets. Therefore, making developing-world populations pay patent-inflated prices encourages rent-seeking by multinationals rather than incentivization. While little noticed in the developed world, the importance of the NCD crisis has not been lost on developing world actors. This Article is the first to document a recent worldwide trend of developing-world courts and administrative agencies breaking with strict patent rights for NCD drugs. It argues that attentive policy makers can seize the opportunity provided by the crisis that developed world populism is creating for liberalizing globalization. If renegotiating free trade is back on the agenda, they need only look to what developing countries have already been doing, at least in the realm of intellectual property rights.