Comparación de los resultados teóricos y experimentales

The aim of this thesis is to discover whether Nigeria could learn from Brazil and/or India on how to create and implement an IP framework, especially a patent regime that encourages, instead of hinders, development and public health management. It also aims to identify the key issues relevant to the implementation of development- oriented patent law and policy in the post-TRIPS period. As such, it employs a critical reading of the daily operationalization of international law in the subaltern forums of India and Brazil. That is, it provides a careful examination and extensive analysis of

Adewopo, ‘Public Health, Access to Medicines and Role of Patent System In Nigeria’ (2011) Nigerian Journal of Intellectual Property Law; Okechukwu Timothy Umahi, ‘Access to Medicines: The Colonial Impacts on Patent Law of Nigeria’ <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1975928> accessed 15 March 2015.

Brazilian and Indian pharmaceutical patent laws, even though Nigeria is ultimately its central focus.

Over the years, subaltern jurisdictions have become the battleground for the promotion of global ideals of human, social, economic, and environmental development. The struggles on access to medicines (A2M) have somewhat shifted from WTO forum disputes to local or national courts in the Third World. This is due to a prevailing perception in contemporary international legal discourse where the Third World has often been seen as the ‘other’. In this view, the Third World is usually the importer of international regulations, from the European civilising missions, International Monetary Fund (IMF) fiscal conditionalities, and the World Bank development programs, to many other such stipulations by donor states and organisations usually located in the Global North.

Within this narrative, international law discourses have the tendency to reduce the Third World to what Upendra Baxi calls the ‘geographies of injustice.’119

That is, the use of international law – be it in human rights, investment, trade, or others – as an instrument for social change, with its applications based on Eurocentric ideals to provide solutions to the needs and concerns of the Third World. One of the consequences of this is a reproduction of patterns of silence and the erasure of significant legal, institutional, and socio-political development and law making in the Third World.

This thesis, therefore, is an exercise in the quest for legal re-ordering of patent law in the Third World – a sort of unmasking of alternative approaches to patent law making and un-making. Such approaches are alternative in the sense that the IP law making engaged in this thesis moves away from the dominant European-US models to a development-oriented IP regime. Through an empirical study of the Brazilian and Indian patent regimes, this thesis maps out the broad interpretations and domestication of international law in the Third World, widening the aperture on international norms and rules governing IP whilst also being ‘TRIPS compliant’ in that challenges at the WTO have failed to materialise.

119 _{Upendra Baxi, ‘Geographies of Injustice: Human Rights at the Altar of Convenience’, Torture as Tort:} Comparative Perspectives on the Development of Transnational Human Rights Litigation (Hart Publishing 2001) 197.

It also reveals how Third World countries such as Brazil and India are ascertaining how different IP regimes affect developing countries on one hand, and are adapting their patent law to fit their own unique environments on the other. In so doing, this thesis pays particular attention to how the local politics between the subaltern state, non-state actors, and transnational capital, as well as the fractions within subaltern states – often ignored in debates surrounding IPRs and their relation to access to health – are involved in the recalibration of global IP norms and discourses. In the discussions in coming chapters, the thesis also exposes some of the contradictions involved in this emerging subaltern jurisprudence on IP law. These contradictions are not surprising. While both Brazil and India are making huge strides in designing patent regime systems that best meet their needs, their respective regimes are still flawed as certain policies and actors inadvertently promote IP practices that impede development and public health management. These actions also do not mean failure of these regimes. Instead, it shows that the IP ecosystem is complex, does not exist in isolation, and the presence of various actors means it will continue to calibrate and recalibrate global IP regime.

Although Nigeria is ultimately the central focus of this thesis, Brazil and India play a very important role in the study for many reasons (see Table 1). First, both countries are similar to Nigeria in that they both have large populations and are demographically multi-ethnic with rich cultures. Secondly, these countries are important regional powers with the ability to influence the legal, political, and social cultures of neighbouring states. On the international scene, Brazil and India played very important roles at the Uruguay Round of negotiations and both countries have always been at the forefront of a development-oriented WTO, the fight for access to medicines, and South-South collaboration. Brazil and India are also hotbeds of social movements. This is apparent in the grassroots mobilisation for AIDS and treatment access movements. For socio-legal purposes, these countries provide useful fodder for competing theoretical ideas about social movements – identities, concerns, and emotional underpinnings. As will be the seen in coming chapters, both the Brazilian AIDS program and the Indian patent regime are testaments to the strategic effort and coalition of social movements in these countries, especially in funnelling information and in producing knowledge.

Brazil India Nigeria

Capital Brasilia Delhi Abuja

Government Type Republic Republic Republic

Population 204,369,000 1,267,401,849 178,516,904

Size of Economy USD2.52 trillion USD5.1 trillion USD510 billion

GNI per capita USD11,690 USD1,570 USD2,710

Gross Domestic Product USD2.246 trillion USD1.875 trillion USD521.8 billion

No of Living With HIV 730,000 2,100,000 3,200,000

No of People on HIV Treatment

650,000 500,000 217,000

Net worth of

Pharmaceutical sector

USD26.892 billion USD12 billion USD 1.28 billion

Table 1: Brazil, India, Nigeria: A Snapshot. Taken from the World Bank Open Data (http://data.worldbank.org), Joint United Nations Program on HIV/AIDS (UNAIDS) (http://www.unaids.org/en/dataanalysis) and the 2014 PricewaterhouseCoopers Report titled ‘The Investment Opportunities in the Pharmaceutical Sector - Nigeria/Pakistan’.