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The World Health Organization defines Health as Aldrin Mark M.

Quintana CEU JD3 the state of complete physical, mental and social well-being, Recognition by the State of two rights may always end not merely the absence of disease or infirmity. It is the into conflict; the role now of its central agency duty of every State in the becomes indispensable into analyzing which right should be more favored. This essay provides a simple world to protect and maintain this concept of health. The discussion about the conflict arising between an 1987 Constitution of the intellectual creation and public health, both protected Philippines ensures this by domestic and international laws. protection by incorporating as one of its policies, the State shall protect and promote the right to health of the people and instill health consciousness among them (Sec. 15, Art. II). Furthermore, Art. XIII on the provisions on Human Rights provides, the State shall adopt an integrated and comprehensive approach to health development which shall endeavor to make essential goods, health and other social services available to all the people at affordable cost. There shall be priority for the needs of the under-privileged sick, elderly, disabled, women, and children. The State shall endeavor to provide free medical care to paupers. This provision clearly declares that right to health is an indispensable right of every person, as one of the duties of the State. One of the factors that affect this right is the income of the person, though the aforesaid provision provides that it should be affordable to all person, still a person who has lower income cannot afford all health services in maintaining his health. The only solution is to rely on the public health services provided by the government and nongovernment organization. It becomes indispensable to the government to ensure national policies that will eradicate problems that may occur in the maintenance of the same and bring to the hands of every person what they are entitled to receive for the promotion of individual health. Nevertheless, the Philippine government still shows incompetence with regard to research and development in the field of public health, which called the indispensable participation of the private sector. The impact of these private sectors provides the essential contribution in the development of medicine, especially in the field of new technology as well as the promotion of public health providing means to ensure equal opportunity in some remote areas, somehow unseen by the government, especially, in the developing countries, like the Philippines, where a substantial differences in health status of the rich and the poor probably more extant.

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The problem lies on the poor allocation and distribution, as well as efficient use of resources which apparently scarce, vis--vis the unlimited needs of individual health security and stability. The Philippines expenditure on health sector, since 1990s has continuously violated the minimum standard set by the World Health Organization, the Philippine government showed no support in the research and development by not providing adequate research facilities and program including high-end technologies. However, The propagation of new technologies resulted in a negative impact to the access of public health, campaigns have been made in order to protect intellectual creations which are being pirated by companies due to lack of government recognition through protective laws. This campaign led Philippine Legislature to enact the R.A. 8293 on January 1998 or the Intellectual Property Code of the Philippines. It declared, The State recognizes that an effective intellectual and industrial property system is vital to the development of domestic and creative activity, facilitates transfer of technology, attracts foreign investments, and ensures market access for our products. It shall protect and secure the exclusive rights of scientists, inventors, artists and other gifted citizens to their intellectual property and creations, particularly when beneficial to the people, for such periods as provided in this Act. The enactment of R.A. 8293 is also the response of the Philippine government to ratify the 1994 World Trade Organization Trade-Related Aspects of Intellectual Property Rights (WTO-TRIPS). This Agreement states that patent protection must be available for inventions for at least twenty years (20) for both products and processes, in almost all fields of technology; it includes research and development of medicines, the most vital factor in public health. As defined by the Intellectual Property Code of the Philippines, a Patent is a grant issued by the government through the IPO. It is an exclusive right granted for a product, process or an improvement of a product or process which is new, inventive and useful. This exclusive right gives the inventor the right to exclude others from making, using, or selling the product of his invention during the life of the patent. A patent has a term of protection of twenty (20) years providing an inventor significant commercial gain. Worst, a perusal to the Agreement provides that the patent extends not just to the goods but also to the process by which such goods undergo, it states, for both products and processes, which means a total of forty (40) years is needed before a medicine could reach the poor public for the complete production of its generic counterpart, which is cheaper. Prior to the Agreement, patent grant was shorter, especially in developing countries like the Philippines. Through the Agreement, the minimum patent grant now is twenty (20) years from the date of filing, the result is apparent, the inability to produce generic medicine which is more affordable than the patented medicine, most pharmaceutical company would recover the so-called sunk cost used in the research and development of
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the medicine, such cost in economics, is generally accepted as not recoverable, due to its effect of increasing the price of goods, and since patent gives longer right to the inventors to keep the full description of the medicine, with almost none intervention of the government for the period of patent, the public in general has no choice but to buy the medicine in its patented price. In an imperfect market, like the Philippines, it is humbly submitted that, such grant gives birth to the so-called de jure monopoly in which the beneficiary are pharmaceutical firms, it gives them a legal protection not to disclose to the public the description as well as the process of producing the medicines, especially, new hybrids. This will effectively eliminate competition from generic pharmaceutical producers and allow for increased prices of medicines beyond the reach of even more patients in the developing countries. A person who cannot afford a patented price medicine will just die due to the lack of generic product which his income could buy. A conflict has now arisen between, how to ensure that patent protection for pharmaceutical products does not prevent people, especially in poor countries, from having access to medicines, and maintaining the patent systems role in providing incentives for research and development of new medicines? In the Philippines, the Agreement exacerbated conflicts between private corporate interests, and the public interest including public health, sadly, the Agreement seemed to favor the former heavily. An evidence of social and economic problem caused by the introduction and enforcement of stricter intellectual property rights, which the Philippines and other developing countries are obliged to implement as part of their obligations under WTO-TRIPS. The ongoing campaign, especially by the developing countries and different nongovernment agencies to lessen the conflict has resulted into a positive outcome, according to the website of Global Governance Watch, a large part of this was settled when WTO ministers issued a Special Declaration on the TRIPS Agreement and Public Health at the Doha Ministerial Conference in November 2001. In this Declaration, the WTO ministers agreed that the TRIPS Agreement does not and should not prevent members from taking measures to protect public health. The TRIPS Amendment allows developing countries with no or insufficient pharmaceutical manufacturing capacity to access alternative supplies of medicines in the event of a public health crisis. The Amendment includes safeguards to ensure that export compulsory licensing is used as originally intended for public health purposes and not to achieve industrial or commercial goals. WTO Members also commit to preventing the diversion of products away from the intended recipient country, so that poor populations are not deprived of the medicines

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intended for them. The goal of the amendment is to ensure that only countries truly lacking in pharmaceutical manufacturing capacity will be able to use export compulsory licensing. Constructively, a solution has been made when the Congress passed the Republic Act 9502 on June 6, 2008 or the "Universally Accessible Cheaper and Quality Medicines Act of 2008" amending for that purpose R.A. 8293, or the Intellectual Property Code; R.A. 6675 the obsolete Generics Act of 1988, and R.A. 5921 or the Pharmacy Law. It declared, It is the policy of the State to protect public health and, when the public interest or circumstances of extreme urgency so require, it shall adopt appropriate measures to promote and ensure access to affordable quality drugs and medicines for all. Furthermore, through such law, the State reserves its right to regulate the prices of drugs and medicines, with clear accountability by the implementing authority as mandated the Act, as one of the means to also promote and ensure access to quality affordable medicines. Presently, at hand is a solution to the conflict, but unfortunately, in the Philippines, execution always becomes another thing, even harder than creating laws. The governments privatization plan has worsened the already poor implementation of laws especially when such enforcement deals with the private sector. Private sectors, especially affected pharmaceutical companies in the Philippines can always raise the protection granted by the Constitution, the provision states, The State recognizes the indispensable role of the private sector, encourages private enterprise, and provides incentives to needed investments (Art. II, Sec. 20), and other implementing laws like the protection granted by the Intellectual Property Code of the Philippines. In its essence, the enactment of R.A. 9502 has really eased up the application of the Agreement, but a law without enforcement is always inutile. Another thing, which the government has failed or probably cannot control, is that, pharmaceutical companies in the Philippines have devised marketing strategy in the promotion of patented drugs by giving royalties to medical practitioners, especially, Doctors of Medicine that by prescribing their patented drugs instead of generics, these Doctors get some incentives. Moreover, most, if not all hospitals also do not patronize the use of generic drugs, worst; make the public believe that patented drugs are more effective than generics. These situations leave the public, especially poor, a wrong notion about generic medicines in the Philippines. People, as a result, tend not to buy generics or they tend not to take medications due to inability of their income to afford medicines prescribed by the doctors, usually, are patented medicines, alarmingly this is oftentimes the situation with regard to prescription medicines. Dr. Jonathan A. Flavier, a medical practitioner, in his essay entitled Do-It-Yourself Health Care has seen a concrete result of these situation in the Philippines, he states, The governments meager resources for health mean that more and more Filipinos will resort to self-diagnosis and medication. The poor will be at a
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disadvantage as they do not have access to health information and services. The wealthy, however, will be healthier. Such self-diagnosis and self-medication are clear proofs of inequalities to the access to public health and information. Nothing hampers that private sectors are indispensable to the research and development in all aspect of technological advancement specifically, in the field of science and medicines, especially in the Philippines, where proofs of inequalities in such field are apparent. However, it is submitted that the recognition by the State to the indispensable role of the private sector does not go beyond putting detriment to the access of the people to public health. The State has always reserves its right to exercise its inherent power, the police power, for public welfare. In the first place, these private sectors are called not to give priority to the profitability of the goods and services sold and rendered respectively, but the application of the quoted State policy lies below public service, it cannot be interpreted to be higher in consideration against the welfare of the public; against the promotion and stability of public health. It is the prime duty of the government to inform the public about the situation; to provide efficient public health access in information and services; about the benefits of generic medicines, and safeguard the access of the people to reasonable range of medicine, to quote again the Social Justice and Human Rights provision of Art. XII of the Constitution, The State shall establish and maintain an effective food and drug regulatory system and undertake appropriate health manpower development and research, responsive to the country's health needs and problems. The government should not just rely on the indispensable role of private sector for the betterment of the society, but the government must act to its indispensable duty of providing the people a better life above any other consideration.

Sources 1. The World Health Organization website; <http://www.who.int/medicines/areas/policy/wto_trips/en/index.html> 2. The World Trade Organization website; <http://www.wto.org/english/tratop_e/trips_e/t_agm0_e.htm> 3. Global Governance Watch website; <http://globalgovernancewatch.org/environment_and_health/health-and-intellectual-property--thewto-and-trips-agreement> 4. Legal Service India website; <http://www.legalserviceindia.com/> 5. Health Economics in the Philippine Context, Bon Kristoffer G. Gabay et al., 2008. Rex Books Store, Inc.

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