Pharmaceutical patent bargains: the Brazilian experience

Bruno Salama, Daniel Benoliel

Research output: Contribution to journalArticlepeer-review


In the backdrop of the strict patent regime flatly adopted by the World Trade Organization (WTO) for all countries, a few countries constantly challenge this system through aggressive patent bargains. Within the pharmaceutical sector, noticeably, some countries now threaten to issue or otherwise actually issue compulsory licenses that may sway large pharmaceutical companies into selling drugs with large discounts or into granting voluntary licenses domestically. That is conspicuously the negotiation strategy adopted by Brazil in its negotiations with big international pharmaceutical companies. This paper explains Brazil's aggressive bargaining approach based on an analysis of two aspects of its political economy. The first has to do with the international context of patent bargaining in the post-WTO era. Accordingly, the existence of large and fast-growing domestic markets position countries like Brazil as strategic destinations for Foreign Direct Investment (FDI) and trade. Combined with a near absence of pharmaceutical product innovation, these conditions boost Brazil's bargaining power for issuing compulsory licenses over pharmaceutical products. The second aspect, more exploratory, is related to political economy dynamics inside Brazil. Accordingly, the political framework in Brazil undermines long-term policies and favors short-sighted ones also vis-a-vis research and development (R & D) investments in the pharmaceutical industry. This remains true regardless of the strictness of the patent regime in place. The lesson of Brazil is particularly relevant for other, more powerful, developing countries which presently examine Brazil's approach while further challenging the WTO's strict patent policy for the future. Reprinted by permission of the publisher.
Original languageEnglish
Pages (from-to)633-685
Number of pages53
JournalCardozo Journal of International & Comparative Law
Issue number3
StatePublished - 2010


  • Brazil
  • World Trade Organization
  • Drugs
  • Patents
  • Bargaining power
  • Compulsory licensing of patents
  • Foreign investments
  • Agreement on Trade-Related Aspects of Intellectual Property Rights (1994)


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