The Global Regime of Intellectual Property Rights. An interpretation grounded in their social function. The case of pharmaceutical patents

Abstract

In an attempt to find conceptual frames to recover the original balance teween propietary aspects of Intellectual Property Rights (IPRs) and their public, social regarding dimensions, i.e., the attainment of certain conception of social justice, in is found that the "social function of property" inherent to traditional property rights is a helpful tool for that purpose. The analysis of property and the social function of property permit ot better understand the condition of IPRs and patents as a specially pronounced contingent, historiacal and social product aimed at the achievement of certainsocial goals. This is even more true for the case of pharmaceutical patents. In is not intended to question patents as a valid system to provide incentives for innovation, nether is it explored the possiblitiy of resorting to other systems for innovation based on public prizes or in general public intervention (in any case, any incentive seem to be necessary to attract and provoke the large investments required in the pharmaceutical business). It is highlighted its instrumental nature, the iuris tantum (versus iuris et de iure) legal presumption in which those patent rights are grounded and justified in order to verify taht IPRs fulfill their inherent social functions. This will enable us to claim for an alternative interpretation and implementation of law adjusted to the social needs and goals wich justify and explain their proper existence and enforceability.