Abstract
Knowledge is a public good. Patents provide property rights in knowledge, which gives the patentee the right to exclude others from utilising the knowledge for the life of the patent. Patents in the field of pharmaceuticals are controversial because of the importance of the knowledge which they exclude others from using. Patents have come under significant criticism for this very reason – with some going as far as to claim that patent protection on pharmaceutical products as the cause of developing states having poor or limited access to life-saving pharmaceutical products. Most of the academic literature regarding access to medicines goes this same way. This paper challenges this viewpoint, and considers the barriers to generic access to medicines beyond patents. This paper looks beyond intellectual property rights to determine what other mechanisms exist that allow innovative vaccine manufacturers to control access to knowledge regarding their products which can act as a barrier to the utilisation of knowledge in the pharmaceutical industry, in a similar manner to intellectual property rights. This paper takes a case study approach considering non-patent-related barriers to access to medicines, focusing on pandemic influenza vaccines and the role of proprietary, non-patented knowledge. This paper concludes that manufacturers have an exclusive monopoly, not because of their intellectual property rights, but because the knowledge required to make the drug is not accessible to generic manufacturers, and highlights why this is the case. This paper argues that it is not the patent protection which is the barrier to introducing generic pandemic influenza vaccines, but rather it is the inaccessibility of knowledge which is not in the public domain, or the inability of manufacturers in developing states to utilise this knowledge, which is the true barrier in this field.
