Direito à saúde e patente de medicamentos da funcionalização das patentes à superação de um dilema

Abstract

Face the issue of injunctions aimed at the provision of medication not offered by the Sistema Único de Saúde, this study addresses the applicability of compulsory licensing presented in the law that regulates national industrial property and supported internationally by the Doha Declaration attempting to solve or even alleviate this problem of access to essential goods for the population. From the theoretical framework proposed by Pietro Perlingieri regarding the subsumption of the infra constitutional values towards the systematicity given by the Constitution and the functionalization of the institutes elucidated by Norberto Bobbio, is examined the hypothesis of a compulsory license for abuse of economic power, specifically the practice of overpricing by the patent holder and, further, that possibility against the emergency and relevance of public interest. Finally, sets out what should be the attitude of the Welfare State against the preservation of the safeguards present in both patent law and, notedly, in the fundamental values of the legal system reflected in principle of human dignity.