Patente y licencia obligatoria no comercial en el acceso a la salud del Ecuador.

Abstract

As background, it is established that the patent grants its holder exclusive rights for a determined time, preventing third parties without their consent from exploiting it commercially. In Ecuador, it is the primary obligation of the state to guarantee the right of access to health. This research details the legal aspects of the mechanism that limits the exclusive right of the patent known as a compulsory license, which allows its beneficiary to exploit it commercially without the authorization of the patent holder being necessary. The pharmaceutical strategy of the World Health Organization in the framework for action in relation to medicines and pharmaceutical policies computed that a third of the world population does not have access to essential medicines. The same strategy tells us that there are several critical factors, the most relevant being price, which is why its reduction is key for developing countries like ours. Among other factors, the sale price causes limitations in access to health, for the private consumer it represents an expense of their income or the patrimony generated depending on the amount of the product, and for public health plans, that is, for the state, implies an allocation from the general state budget that, also depending on the price of the product or procedure, will allow this constitutional obligation of the state to be covered in greater or lesser demand. When the conditions contemplated in the legal regulations exist, this allows any public or private third party to request the state to grant a compulsory license for the patent in order to expand access through sales at a lower cost. Our country has had a history of granting compulsory non-commercial licenses for 12 years, nowadays reviewing its results is essential to determine its real impact on access to health.