MURAL - Maynooth University Research Archive Library



    Patents & Access to Health-Technologies in Everyday Healthcare Contexts for Rare Diseases: Implications and Limitations of the Right to Health at the National Level?


    McMahon, Aisling and Kane, Lauren (2026) Patents & Access to Health-Technologies in Everyday Healthcare Contexts for Rare Diseases: Implications and Limitations of the Right to Health at the National Level? In: Intellectual Property Law and Human Rights. 5th ed. Walters Kluwer Publishing. (In Press)

    Abstract

    Patent rights enable rightsholders to exclude others from using a technology for typically 20 years. The exclusionary nature of patents mean they can be used to incentivize certain technological developments, including health-technologies. On the other hand, this exclusionary role also means that patents can be used in ways that can create barriers for access to technologies. For patents over health-related technologies, such as medicines, vaccines and medical devices, this can have significant health implications for patients. Thus, it is sometimes argued that the right to health could be used to mobilize greater access to patented health-technologies. This chapter analyses the role of the right to health, focusing on Article 12(1) International Covenant on Economic, Social and Cultural Rights 1966, as an avenue to be used within national States to obtain greater access to patented health-technologies. Against the backdrop of increasing costs of medicines globally, within high-income and low- and middle-income States, this chapter focuses on the role of the right to health in everyday healthcare contexts. It examines whether and to what extent, the right to health can be leveraged at the national level within States – by individual patients and/or their families, and by States - to offer effective avenues to address access issues posed by certain uses of IPRs over health-technologies. It also analyses various limitations of the right to health in such contexts. The chapter argues that for the right to health to offer an effective avenue in national contexts to appropriately balance patients’ interests with intellectual property rightsholders’ interests, States must show greater willingness to engage with the right to health in a proactive manner, including using this right to support targeted policy and legislative reform. A key element of this is the need for greater State recognition and engagement with the collective dimension of the right to health. Moreover, it argues- that the more States which adopt such approaches, the greater likelihood that the right to health can offer effective avenues to address these issues.
    Item Type: Book Section
    Additional Information: This is a pre-print and pre-copyedited version of a chapter, the final version is forthcoming as: Aisling M. McMahon & Lauren Kane, “Patents & Access to Health-Technologies in Everyday Healthcare Contexts for Rare Diseases: Implications and Limitations of the Right to Health at the National Level?” in Paul L.C. Torremans (eds), Intellectual Property Law and Human Rights. (5th Edition, Walters Kluwer Publishing, forthcoming 2026).
    Keywords: Patents & Access; Health-Technologies; Everyday Healthcare Contexts; Rare Diseases; Implications and Limitations; Right to Health; National Level;
    Academic Unit: Faculty of Social Sciences > Law
    Item ID: 21142
    Depositing User: Aisling McMahon
    Date Deposited: 27 Jan 2026 14:19
    Publisher: Walters Kluwer Publishing
    Refereed: Yes
    Funders: ERC, PatentsInHumans, Project No. 101042147
    Use Licence: This item is available under a Creative Commons Attribution Non Commercial Share Alike Licence (CC BY-NC-SA). Details of this licence are available here

    Downloads

    Downloads per month over past year

    Origin of downloads

    Repository Staff Only (login required)

    Item control page
    Item control page