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In the dispute over the enforcement of pharmaceutical patents, the International Covenant on Economic, Social and Cultural Rights is sometimes cited as giving patent protection the status of a 'human right'. It is true that the ICESCR provides for ‘the right of everyone’ ‘[t]o benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author’. But that does not mean that patent protection is a human right. Patent fails as a human right for many reasons, one of which is the lack of fit between current patent law and and the Covenant. Current patent laws grant patents to people who are not ‘authors’ whom the human rights regime is designed to protect, and current patent laws refuse to recognize as patent holders many people who would indeed be authorial inventors.
Wendy J. Gordon,
Current Patent Laws Cannot Claim the Backing of Human Rights
Intellectual Property and Human Rights: A Paradox
(Willem Grosheide ed.,
Available at: https://scholarship.law.bu.edu/faculty_scholarship/1922