PHARMACEUTICAL PATENTS AND THE FUNDAMENTAL RIGHT TO LIFE AND HEALTH: AN ANALYSIS OF THE CONFLICT IN LIGHT OF THE HERMENEUTICS OF TECHNOLOGY

Abstract

This article seeks to collaborate and establish guidelines on the possibility of pharmaceutical patent infringement cases, based on the protection of human rights and fundamental to life and health. Initially, it is demonstrated the difficulty of the patent procedure of a drug, demonstration of research investment in the area and rights and (dis)stimuli that companies in the area present. On the other hand, it will be demonstrated the reality of several specific diseases whose treatments have monetary costs that exceed socioeconomic limits of society in general, even with price negotiation. Thus, Jacques Ellul's theoretical criticism is based on the technique with practical solutions, through his perspective of legal insufficiency in the defense of fundamental rights in the context of today's technical society that prioritizes mechanizations to humanization. The awareness of the imposing on the human condition and the intrinsic characteristics of the technique must be reached for the proper evaluation of its effects. Being the reflection on the technique the main means to identify the best adaptation between the harmful and beneficial effects of the technique for the human being. Ultimately, the fact that the patenting stimulus of medicines itself generates improvements and thus improvements to the health of the individual affected by the disease must be verified, understood and made compatible. With the use of the theoretical-deductive method, logic, customs, common sense and photic-logical moderation - with empirical data - conclusions must be reached and, above all, solutions with due transparency, legitimate purpose and proportionality.