Licença compulsória na indústria farmacêutica: o instrumento de efetivação do acesso aos medicamentos e ao direito fundamental à saúde

Abstract

This work aims to analyze the Industrial Property Code, regarding the granting of patents to inventions in the pharmaceutical industry, specifically observing the hypotheses of compulsory licensing in the current Brazilian scenario regarding public health policies. From the perspective of public and business law, the study will go deeper into the matter surrounding the patent institute, analyzing its social and economic aspects, and will study under the compulsory license instrument, with reflection on the use of licensing as mechanism of effective access to medicines and access to health. In order to do so, the study will be developed through a structuring history, with an approach to topics such as the history of property, especially industrial property in the pharmaceutical industry and analysis of Brazilian legislation, as well as discussing the importance of patents in economic development and technological developments in the country, not to mention the possible abuses brought by the institute, when it does not reach its social function. This path is necessary to build the foundation and indispensable to establish some initial premises and essential to the construction of objectified reasoning. Next, an analysis of the relevance of patents for the development of the country will be proposed, followed by the possibility of reviewing and extending the hypotheses of compulsory licensing as a mechanism for satisfying public policies, with the case study of the only license in national soil granted to the drug Efavirenz, addressing the success achieved in the subsistence of the public health program. Thus, bibliographical sources and scientific articles have been used, as well as legislative sources, based on the dialectical method of research, in order to eliminate the divergences and contrasts inherent to the theme. Finally, in the conclusion, an analysis of the patents will be proposed with a view to the balance between the incentive to technological innovations and the factor generating obstacles to public health, so that the compulsory concession represents an instrument of effective access to health and medicines.