Courts and Pharmaceutical Patents: From Formalist Positivism to the Emergence of a Global Law

Abstract

AbstractThis article seeks to repurpose the relation between courts and IP law, avoiding describing them as a purely neutral and unidimensional process whereby ‘courts apply IP law’. Based on two cases from Brazil (Trastuzumab and Sofosbuvir), the article argues that the role of courts in implementing TRIPS flexibilities is in itself a factor that determines or at least influences the behavior of actors in the field. As such, courts are not arenas, but actors that influence competition and restructure markets. This pushes for the recognition that patent use and patent abuse, including practices in patent filings such as evergreening and sham litigation, are legal phenomena that ought to be regulated differently by law. Instead of formalist positivism, law should be more thoughtful of socio-economic consequences and of existing contexts. This aims at addressing economic structures rather than reinforcing them in cases pertaining to pharmaceutical patents.The article concludes by proposing an interpretation of IP law which is integrated with competition law principles, both oriented towards, and based on, public interest provisions. Overall, the article posits that this is a better framework than regarding IP and competition law as ‘complementary’ and to address issues of how courts may be misused by economic actors due to fragmentation of the two legal fields. Furthermore, such endeavors are part of an emerging body of what some could even call “global law”; in this case, it means a nod for the transnational implications of national IP cases beyond its original realm.