This chapter critically examines some of the popular theoretical justifications that have hitherto been postulated as explanations for the existence of intellectual property rights in general and patent rights in particular. The focus here is limited to the Lockean theory, the Hegelian theory, the utilitarian theory, and the regulatory theory. The chapter is structured into four sections. Sections 2.2 and 2.3 examine the Lockean and Hegelian theories, respectively, while Sections 2.4 and 2.5 focus on the utilitarian and regulatory theories, respectively. The chapter concludes with the view that the regulatory theory of intellectual property is the only theory that adopts a broad socio-centric approach. Thus, any developing country that seeks to preserve its patent policy space and secure access to medicines for its citizens should treat intellectual property law (including patent law) as an instrument that regulates the grant of exclusive rights to creators.

This chapter answers two key questions, integral to the issues addressed in this book. First, are patent rights human rights under international human rights law? Second, is the incorporation of a model of human rights compatible with the TRIPS Agreement? The answers will determine whether developing countries can successfully incorporate a model of human rights into the design, implementation, interpretation, and enforcement of their national patent laws. Section 3.2 examines the human right to health under international law. Section 3.3 provides an analysis of the nature of the relationship between patent rights and the right to health under international human rights law and answers the first key question. Section 3.4 examines the extent to which the TRIPS Agreement permits developing countries to fulfil their right to health obligations and answers the second key question. The chapter concludes with the view that patent rights should not be considered as human rights under international human rights law and that the model of human rights is compatible with the TRIPS Agreement. Thus, there is nothing that prohibits a developing country from insisting on the primacy of human rights obligations when attempting to resolve the tension between patent rights and the right to health at the national level.

This chapter is divided into three sections. Section 5.2 provides a brief overview of the legal framework on pharmaceutical patent law in South Africa, while Section 5.3 examines the jurisprudence on the right to health in South Africa. Section 5.4 deals with the incorporation of a model of human rights into the adjudication of disputes involving pharmaceutical patent rights by courts in South Africa. The chapter concludes with the view that the incorporation of a model of human rights does not necessarily translate to the abrogation of patent rights, it only means that the courts should not permit patent rights on pharmaceutical products to be exercised and enforced in a manner that impedes the enjoyment of the human right to health.