A Hole in the Bucket: the World Trade Organization’s Endeavor to Strike a Global Balance Between Intellectual Property Rights and the Need for Access to Essential Medicines in Developing Nations

A HOLE IN THE BUCKET: THE WORLD TRADE ORGANIZATION’S ENDEAVOR TO STRIKE A GLOBAL BALANCE BETWEEN INTELLECTUAL PROPERTY RIGHTS AND THE NEED FOR ACCESS TO ESSENTIAL MEDICINES IN DEVELOPING NATIONS Jude A. Thomas INTRODUCTION Epidemic diseases and the contemporary medicines used to combat them have created curious opponents in the global intellectual property fray: at odds are the pharmaceutical-manufacturing industry that produces these drugs, and the developing nations that stand to benefit the most from their use. The critical needs of developing nations for access to essential medicines have long been at issue with the objectives of the pharmaceutical industry, which seeks to protect its intellectual property rights and to profit from the billions of dollars it invests annually in research and development.1 The least-developed countries (LDC’s)2 are at greatest risk in this regard because they are typically unable to purchase or pay royalties for the right to produce essential medications that are protected by patents. These nations are beleaguered with infectious diseases such as HIV/AIDS, tuberculosis, and malaria, in epidemic proportions.3 However, pharmaceutical manufacturers assert that they could not continue to invest in

1. The Pharmaceutical Research and Manufacturers of America (PhRMA) reports that its member companies invested an estimated $33.2 billion on research and development in 2003. See PHRMA, PHARMACEUTICAL INDUSTRY PROFILE 2004 vii (2004), http://www.phrma.org/publications (last visited Dec. 17, 2004) [hereinafter PHRMA PROFILE]. 2. The Economic and Social Council of the United Nations utilizes three criteria to identify leastdeveloped countries: (1) low income, characterized by a three-year mean estimated gross domestic product per capita of less than $750; (2) low quality of life, taking into consideration nutrition, health, education, and adult literacy; and (3) high economic vulnerability, attributable to factors such as an instability in...