Abstract

Like many issues in today's complex world, the issue of counterfeit drugs is multifaceted, and the regulation thereof derive from a variety of legal sources. Criminal law plays a role in counteracting the distribution of counterfeits directly by prosecuting those engaged in the trade. Healthcare policy plays a role in shaping the markets for counterfeits. International law also plays a role in synchronizing networks of governments and NGO's in combating the spread of counterfeits. Distinct yet uniquely stitched into the body of health policy and enforcement mechanisms is intellectual property law. Given the incredible importance of patent and trademark rights in the sphere of legitimate drug development and distribution, intellectual property provides a useful frame for addressing and considering the issue of counterfeit drugs. In particular, considering the varying regimes of intellectual property protections globally may elucidate why the counterfeiters have been able to develop and thrive in recent years. This note will consider the implications of intellectual property protections regarding the proliferation of counterfeit drugs. The note will first explicate the scope of the issue of counterfeit drugs with specificity towards the relationship between counterfeits and intellectual property, then considering the defects within present intellectual property regimes permitting or encouraging the growth of counterfeits. The note will then consider and propose solutions to resolve issues regarding the proliferation of counterfeit drugs. Criminal law, health law, international law, and broader health and economic policies will also be considered, as they are relevant to the underlying analysis of intellectual property regimes and the topic of counterfeit drugs.