确立健康权保护义务的对世性——TRIPS下专利权和健康权冲突的出路

Establish the Right in Rem of the Protection Responsibility of Health Right

专利权和健康权的冲突自TRIPS协议确立的知识产权一体化保护后愈演愈烈,《多哈宣言》缓解了二者的冲突,但未从人权的角度为健康权保护提供依据。《经济、社会和文化权利国际公约》规定了健康权,但却因用语模糊而被认为是一种政策性原则,TRIPS协议对专利权"私权神圣"的保护模式更加重了健康权的"弱势"。健康权对应有明晰、具体的义务,而非模糊的政策标准。在国际法人本化时代,健康权代表的全人类共同利益折射出国家保护健康权所承担义务的对世性。这为解决TRIPS下专利权和健康权冲突提供了解决思路。

The conflicts between patent right and health right has become increasingly fierce ever since the protection of the integration of intellectual property established by TRIPS. Doha Declaration relieves the conflict but doesn＇t provide any protection for health right from the perspective of human rights. International Covenant on Economic, Social and Cultural Rights（ICESCR） stipulates the health right, but is regarded only as a policy principle, while the models of protecting patent right by TRIPS have weakened the health right. Health right should have clear and specific responsibilities but not vague policy criteria. In the humanistic era of international law, the common interest of all people represented by health right reflects the reality of the responsibility undertaken by the health right protected by the country, which provides approaches to solve the conflicts between patent right and health right.