The Incentive Argument in Pharmaceutical Patent Law

Abstract. This paper critically examines the pharmaceutical industry and the incentive argument in patent law. It begins by framing an overview of the industry and patent law, focusing on U.S. and U.K. law, and multilateral agreements, and efforts by international organizations, such as the World Trade Organization (WTO). Next, the paper considers patent incentive arguments on both sides of the issue to provide a holistic and balanced perspective. It then views the longstanding debate through the lenses of contemporary issues related to Covid-19 vaccines and the recent patent waivers considered by many countries. This paper then provides informed opinions supporting the argument that intellectual property protection is core to innovation in the pharmaceutical industry, but patent waivers may be a necessary tool in certain situations. Lastly, it concludes by recommending fixing the TRIPS compulsory licensing provision flaws and carefully finding a TRIPS waiver solution that could strike the desired balance between protecting intellectual property (IP) and providing for the common good.