Rethinking the Pharmaceutical Knowledge- Economy: Patents, the TRIPS Agreement, and Skewed Utilitarianism in the Evolving Ideological Paradigms

The TRIPS Agreement introduced a unique globalized pharmaceutical patent economy. This article examines the social costs of this patent regime in low-income countries and makes three contributions. Firstly, it highlights how, in the early development of the patent system, nations perceived patents as privileges and displayed considerable reluctance in protecting pharmaceutical products and processes. This allowed net importers of technologies to replicate foreign innovations without the constraints of IP rights, and in some cases, invalidate unnecessary patents. However, this took a different turn towards the tail end of the 20th century when the patent norms and rules were harmonized and globalized. Secondly, the article argues that the new regime is rooted in what can be termed 'skewed utilitarianism,’ as patent rights appear extensive while collective rights are undervalued, seemingly favouring specific stakeholders and neglecting distributional consequences for others. The new regime shields the patent system from principles of social justice and leads to adverse outcomes for vulnerable and impoverished populations. Lastly, the paper introduces a three-tier integrated framework as part of the reevaluation of the global patent dynamics. The framework involves an appreciation of the IP norm-making process, democratizing the norm-making process to allow broader representation, and centering ‘flexibility’ in the policymaking process.