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Counterfeit Pharmaceuticals in China: Could Changes Bring Stronger Protection for Intellectual Property Rights and Human Health?
I. INTRODUCTION
The World Health Organization ("WHO") defines a counterfeit drug as "a medicine, which is deliberately and fraudulently mislabeled with respect to identity and/or source."1 China is one of the world's top producers of both legitimate and counterfeit pharmaceuticals.2 In 1980, China took initial significant steps to improve its IP climate when it joined the World Intellectual Property Organization ("WIPO").3 Since this important development, China has adopted and amended its IP law, signed several treaties, and joined international organizations to work towards establishing a "made by China" label, rather than remaining with the "made in China" label.4 These changes have led to fast-paced growth of intellectual property activity.5 In fact, according to a WIPO report, China has become the third largest recipient of patent filings with a filing increase of almost thirty-three percent in 2004 alone.6 Although these numbers seem promising, China's prominent role in the counterfeit drug market reveals its ongoing inability to enforce IP rights or to prosecute infringement through administrative, civil, or criminal mechanisms.7Worldwide, the counterfeit drug market accounts for approximately forty billion dollars in annual sales.8 China is a lead actor in this market, and its role will arguably only increase in the future.9 Although there are significant profits that can be earned from participation in the counterfeit drug market, counterfeiting also results in physical harm or death to thousands of people globally,10 as well as decreased confidence in the Chinese economy and stifled innovation.11 The Chinese government could arguably approach this problem head-on by amending legislation and increasing enforcement efforts. Additionally, it could work to eliminate the local government corruption that undermines existing counterfeit drug regulations.12This comment discusses the issues revolving around China's counterfeit drug industry and provides suggestions as to how the Chinese government can better address this problem. Part II discusses the serious health threats posed by counterfeit drugs, introduces a prominent example of drug counterfeiting, and presents the steps China has already taken to fight against IP infringement. Part III describes the body of Chinese law created to confront IP infringement and fight against counterfeiting. Part IV addresses the legal mechanisms used to enforce these IP laws and discusses specific issues that hinder deterrence of pharmaceutical counterfeiting. Finally, Part V suggests possible means by which the Chinese government could improve enfor...See the full content of this document
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