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Vol. 41, Nº 78 (2023), 829-844
IEPDP-Facultad de Ciencias Jurídicas y Políticas - LUZ
Recibido el 21/04/23 Aceptado el 06/06/23
The role of intellectual property
in the post-war development
of the health care sector
DOI: https://doi.org/10.46398/cuestpol.4178.55
Olha Kronda *
Olena Chomakhashvili **
Olena Ponomarova ***
Oksana Kashyntseva ****
Inha Kryvosheina *****
Abstract
Understanding the role and necessity of the use of intellectual
property in the eld of medicine is the basis for the proper
development of this eld in the postwar period, as well as for the
entire healthcare system. Therefore, the purpose of the study was
to determine the impact and prospects of the use of intellectual
property in the development of the Ukrainian health sector, post-war. The
methodological basis of the work consists of general and special scientic
methods: analysis and synthesis, generalization, dialectical, axiological,
legal-formal, legal-comparative and structural system. The result of the
work shows the necessity of using heterogeneous objects of intellectual
property, in particular, those in the eld of copyrights and patents, for
adequate reform and eective modernization of the health sector. It is
concluded that intellectual property is designed not only to ensure the
property and non-property interests of the subject of the specied property,
but, in addition, is intended to ensure the needs of society in general in
the appropriate sphere, where the objects of intellectual property nd their
concrete application.
* Ph.D., in Law; Associate Professor at the Intellectual Property and Information Law Department of the
Educational and Scientic Institute of Law at Taras Shevchenko National University of Kyiv, Ukraine.
ORCID ID: https://orcid.org/0000-0002-8039-1763
** Ph. D., Associate Professor, leading researcher of the department of human rights and intellectual
property rights in the eld of health care of the Research Institute of Intellectual Property of the
National Academy of Sciences of Ukraine. ORCID ID: https://orcid.org/0000-0002-0546-2138
*** Ph.D., Senior researcher of the department of intellectual property rights and human rights in health
care of Scientic and Research Institute of Intellectual Property of the National Academy of Sciences of
Ukraine. ORCID ID: https://orcid.org/0000-0002-8232-3748
**** Head of the Center for Harmonization of Human Rights and Intellectual property rights, head of the
department of intellectual property rights and human rights on healthcare of Scientic and Research
institute of intellectual property of National academy of Law Sciences of Ukraine ORCID ID: https://
orcid.org/0000-0002-2598-5614
***** Ph. D., Associate Professor of the Intellectual Property and Informational Law Department of the
Educational and Scientic Institute of Law at Taras Shevchenko National University of Kyiv. ORCID
ID: https://orcid.org/0000-0003-3630-2257
830
Olha Kronda, Olena Chomakhashvili, Olena Ponomarova, Oksana Kashyntseva y Inha Kryvosheina
The role of intellectual property in the post-war development of the health care sector
Keywords: intellectual property; copyright; patent law; invention in
medicine; large-scale invasion.
El papel de la propiedad intelectual en el desarrollo del
sector sanitario en la posguerra
Resumen
Comprender el papel y la necesidad del uso de la propiedad intelectual
en el campo de la medicina es la base para el desarrollo adecuado de este
campo en la posguerra, así como para todo el sistema sanitario. Por lo tanto,
el propósito del estudio fue determinar el impacto y las perspectivas del uso
de la propiedad intelectual en el desarrollo del sector de la salud de Ucrania,
en la postguerra. La base metodológica del trabajo consiste en métodos
cientícos generales y especiales: análisis y síntesis, generalización, sistema
dialéctico, axiológico, jurídico-formal, jurídico-comparativo y estructural. El
resultado del trabajo muestra la necesidad de utilizar objetos heterogéneos
de propiedad intelectual, en particular, aquellos que se encuentran en el
ámbito de los derechos de autor y patentes, para la adecuada reforma y
modernización efectiva del sector de la salud. Se concluye que la propiedad
intelectual está diseñada no sólo para garantizar la propiedad y los intereses
no patrimoniales del sujeto de la propiedad especicada, sino que, además,
tiene por objeto garantizar las necesidades de la sociedad en general en la
esfera apropiada, donde los objetos de la propiedad intelectual encuentran
su aplicación concreta.
Palabras clave: propiedad intelectual; derechos de autor; ley de
patentes; invención en medicina; invasión a gran escala.
Introduction
The study is devoted to the importance of intellectual property objects in
the eld of health care during the recovery of Ukraine after the full-scale war
with the Russian Federation. Thus, despite the fact that the prospects and
deadlines for the end of hostilities are currently not clearly dened, there is
already a need to build structured plans for the post-war reconstruction of
the state and develop mechanisms for their implementation. The sphere of
health care is no exception, which is an important segment in the everyday
life of normal civilized society.
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The full-scale invasion of the Russian Federation on the territory of
Ukraine changed the outlook not only of Ukrainians but also of the whole
world. From now on, security issues occupy the most important position
among other issues of domestic and foreign policy, since its provision is
the main condition for the successful implementation of all other vectors
of public life.
The end of the military conict will have the consequence of rethinking
many internal and external processes in various spheres, in particular in the
sphere of health care. This area should be one of the rst to be modernized,
since, rstly, after hostilities, many soldiers and civilians who suered from
the actions of the aggressor state will need treatment and rehabilitation,
and secondly, the pro-European vector of Ukraine, which gained new
momentum during the full-scale invasion, demands compliance of the
medical eld of Ukraine with the high standards of the European Union
(hereinafter referred to as the EU).
The purpose of the study is to determine the impact and prospects of the
use of intellectual property in the post-war development of the healthcare
sector of Ukraine.
1. Theoretical Framework or Literature Review
The issue of the use and importance of intellectual property in the
eld of medicine and biotechnology has been repeatedly studied by many
scientists, each of whom focused on the appropriate aspect of such use,
thereby contributing to a common theoretical base on this topic.
For example, the contribution of Kashintseva (2013), whose huge
number of works are devoted to various manifestations of intellectual
property in the eld of health care, both within the limits of copyright and
patent law, is invaluable. As a candidate of legal sciences, and an active
employee of the Research Institute of Intellectual Property of the National
Academy of Sciences of Ukraine, the latter studied, in particular, the
principles of the legal protection of intellectual property in the medical
and pharmaceutical market from the position of priority of human rights,
determined the relationship between human rights and the right to patent
methods of diagnosis and treatment, established the features of an author’s
work on medical topics, insisted on the need to take into account the public
interest when granting an exhaustive intellectual property right to a socially
important object in the eld of medicine.
Thanks to her, the theoretical base of the subject of this study was
supplemented with a strong, well-founded position on the shift of priorities
towards the accessibility of the achievements of modern medicine and
pharmacy to society.
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Olha Kronda, Olena Chomakhashvili, Olena Ponomarova, Oksana Kashyntseva y Inha Kryvosheina
The role of intellectual property in the post-war development of the health care sector
The works of Hlushchenko (2017) made a similar contribution to the
mentioned topic, which detailed and summarized the features inherent in
the objects and subjects of intellectual property in the eld of medicine and
biotechnology.
Problematic questions of the patent law in the eld of medicine were
reected in the works of K. Datsko (2018), where there is an analysis of
the norms of Ukrainian national and foreign legislation in this eld within
the framework of the classication of objects of intellectual property law in
medicine and their tools, requirements for their recognition and protection,
a complex of special procedures and measures, which are used not only for
marketing and capitalization of the medical business but are also a means
of providing domestic medicine with high-quality pharmaceutical products
and the involvement of modern methods of treatment.
Korogod and Novorodovska (2020) supplemented the specied base
by comparing the foreign practice of using objects of intellectual property
rights in the eld of biotechnology, in particular by studying the user
experience of the USA and Japan, which can be considered leading states
in the use of an intellectual property. The peculiarities of the functioning of
the biotechnology industry in China, India, Switzerland, and the countries
of Western Europe were also investigated.
According to the fact of carrying out the specied comparison of state
policies, scientists focused on the possibility of eective development of
the intellectual property market with the help of Internet technologies,
university spin-o companies, transfer of technology and movement of
human capital, and proper nancing of the mentioned processes.
With the joint eorts of such personalities as V. Teremetskyi, A.
Matviychuk, O. Muzychuk, M. Shcherbakovskyi, and O. Oderii (2019) the
peculiarities of the legal protection of medical inventions were claried, the
prospects for its improvement were determined, the balance of interests,
the rights of patients and patent holders were additionally analyzed, the
need for the implementation of the norms of international law and the
law of the European Union into the legislation of Ukraine was established.
Scientists have proven that objects of intellectual property in the eld of
medicine have a species division and must meet ethical requirements.
The problems of private law in modern Europe, including the problems
of the intellectual property institute, were considered by Kharytonov et al.
(2019).
However, the waging of a full-scale war on the territory of Ukraine led
to the emergence of a new vector of studying intellectual property objects
in the eld of health care, which consists of the study of their application
in the post-war reconstruction of the state. Given the fact that the issue of
the restoration of the state after the war began to arise relatively recently,
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full-edged research within the chosen topic is currently lacking, therefore
there is an urgent need for additional study of the importance of intellectual
property in the eld of health care during the period of restoration of
independent Ukraine.
2. Methodology
Achieving the above research result became possible due to the combined
use of general scientic and special methods of scientic knowledge.
Thus, with the help of the dialectical method, a general idea of
intellectual property in the eld of health care was formed, which consists
in establishing a system of its properties, connections, and regularities that
are manifested in the mentioned eld.
The analysis and synthesis served as the basis for characterizing the
features of the use of individual intellectual property objects in medicine,
which made it possible to draw conclusions about the prospects for their
use in post-war development.
The axiological method made it possible to assess the importance
of the health care sphere for Ukraine to realize its own integration goals
and strengthen it as a sovereign state, and also helped to establish the
importance of the specied intellectual property processes.
System-structural analysis revealed the content of the main objects of
intellectual property in the eld of medicine and determined the plane of
their application. The specied method, in particular, became the basis for
proposing dierent classications of the investigated objects according to
separate independent separation criteria.
The formal-legal method, in turn, also helped to clarify the essence and
content of the main concepts on which the research is based, in particular,
as an object of intellectual property and a medical invention.
With the help of the functional method, the purpose of intellectual
property was determined for the proper functioning and development of
the state in the period of post-war development and after it; the vectors of
using the results of intellectual mental activity are determined.
Comparison of intellectual property objects of any other sphere with such
objects in the eld of health care became possible due to the comparative
legal method. Thus, it was established that the objects of intellectual
property in the eld of medicine have a number of features that distinguish
them from the same kind of objects in other spheres of social life. The
specied method helped to identify the shortcomings of the legislation on
intellectual property.
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Olha Kronda, Olena Chomakhashvili, Olena Ponomarova, Oksana Kashyntseva y Inha Kryvosheina
The role of intellectual property in the post-war development of the health care sector
The method of generalization also contributed to the identication
of shortcomings and problematic issues in the eld of application of
intellectual property in the eld of medicine, which in turn made it possible
to draw attention to the need for their urgent solution in the period of post-
war development, in particular by changing the vector of domestic policy
within the scope of patenting inventions and useful models.
3. Results and Discussion
The current stage of human development is characterized by instability
associated with radical changes in world politics, economics, law and many
other spheres of public life (Tkalych et al., 2022). The eld of medical care
in dierent countries of the world is also undergoing signicant changes.
One of the most eective ways to modernize and improve the healthcare
sector is the active development and application of intellectual property
objects in medicine.
The denition of the concept of an object of intellectual property is
not established either in the Civil Code of Ukraine (Law 435-IV, 2003)
(hereinafter referred to as the Civil Code of Ukraine) or in any other
Ukrainian legal act. At the same time, Part 1 of Article 418 of the Civil Code
of Ukraine establishes that the right of intellectual property is the right of
a person to the result of intellectual, creative activity or to another object
of intellectual property right, dened by this Code and another law. Thus,
the legislator understands the object of intellectual property rights, in
particular, as the result of a person’s intellectual and/or creative activity.
However, the result of such work is not always the object of intellectual
property.
In order to bring clarity to this issue, the legislator xed in Article 420
of the Civil Code of Ukraine an approximate list of those objects that can
be considered an object of intellectual property. This list is approximate
because the active development of the innovation sphere, in particular with
the help of information technologies, leaves the niche of the intellectual
property open for new objects that may be dierent from those already
known and established at the legislative level.
Objects of intellectual property can be classied as complex objects of
civil turnover since their existence and registration of such existence are
associated with the presence of a large number of nuances. Thus, the object
of real property is a material substrate that is limited in space and is used by
a certain number of persons; in contrast, the object of intellectual property
is an ideal substrate that exists in an immaterial form on a material medium
(Kozyakova, 2008).
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Objects of medical intellectual property, which represent material and
other goods in such a eld, which satisfy the relevant interests and needs
of citizens and organizations and regarding which subjects of intellectual
property in the eld of medicine and biotechnology enter into dened legal
relations and perform the necessary sub-objective rights and obligations
(Hlushchenko, 2017), occupy an important place in the eld of health care.
Such objects can be divided into two main groups according to species
characteristics:
1) objects of copyright, and;
2) objects of patent law.
Of course, the specied gradation is conditional, but it shows the main
vectors of the use of intellectual property in medicine for the purpose of its
improvement. Other objects of intellectual property, which are not included
in the specic groups outlined above, can also be used in the eld of health
care, but it is not yet possible to imagine their use, since such examples are
currently unknown in practice.
The rst main group of intellectual property objects in the eld of health
care consists of copyright objects, which in this eld should include:
• materials used in public presentations (theses, reports, lectures,
seminars);
• results of conducted scientic research (scientic articles,
dissertations, monographs);
• design and technological documentation for medical devices and
instruments;
• reports on pre-clinical and clinical examinations of medicines and
medical devices, regulatory documents;
• advertising brochures, methodical manuals, and guidelines for
doctors;
• graphic demonstrative materials of the treatment process (pictures,
drawings, illustrations);
• audiovisual demonstrations of medical interventions, photographic
works, and slide lms illustrating modern medical technologies,
and;
• computer programs for medical and diagnostic proles (Popovych
and Koshova, 2021).
It is these objects of copyright that are necessary, in particular, for the
study of various diseases and injuries, the consequence of which may be the
invention of an eective method of treatment, which is why, in the opinion
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Olha Kronda, Olena Chomakhashvili, Olena Ponomarova, Oksana Kashyntseva y Inha Kryvosheina
The role of intellectual property in the post-war development of the health care sector
of the author, such objects of intellectual property should be placed in
public access as much as possible on publicly known platforms of doctors
and other specialists in the eld of health care.
Along with this, the situation of uncontrolled access to the object of
copyright in the eld of medicine may violate certain material interests
of the author, who owns non-property and property rights to his object,
however, in the opinion of the author, the social necessity of these results
of intellectual activity should prevail over such an interest, in connection
with which it is not necessary to limit access to the specied objects of
copyright. Instead, it is expedient for an authorized entity from the state to
consider the possibility of developing and implementing a mechanism for
compensating the author for the material costs incurred by the latter due
to open access to intellectual property objects in the eld of health care, the
author of which is himself.
Objects of patent law in medical practice include inventions. An
invention is the result of a person’s intellectual activity in any eld of
technology, which has novelty, inventiveness, and industrial applicability.
The novelty of the invention does not limit territorial framework, it must
have an absolute global character. Novelty is assessed not only by previously
registered inventions or utility models but also by publicly available sources
of information, including publications and articles. The inventive step is
a non-obvious way of obtaining a technical solution that does not have to
follow the existing state of the art. Industrial suitability is the possibility
of using the invention in the treatment process (Popovych and Koshova,
2021).
The most common objects of inventions in medical practice are a
product (device, substance) or process (method): devices for treatment
and diagnostics; medicines; strains of microorganisms used for disease
diagnosis or treatment; biotechnological inventions.
Medical devices include devices and apparatus for diagnostic and
therapeutic purposes; surgical, ophthalmological, and other special
instruments; equipment of operating rooms, laboratories, diagnostic and
other oces; devices for physiotherapy and massage; x-ray equipment;
medical products: prostheses, tires, bandages, hearing aids (Kashintseva,
2014).
The variety of intellectual property objects that can be used in the eld of
health care indicates the need for the development of such innovations both
in the present time and in the post-war period since such inventions aect
the possibility of receiving proper medical care and increase the level of the
possibility of treating various human health disorders.
The specied variety of inventions for ease of classication can be
conditionally divided into:
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1. pharmacological, where the objects of intellectual property will be
new or improved pharmaceutical preparations;
2. microbiological, accompanied by the study of various types of
microorganisms (viruses, bacteria);
3. procedural, represented by ways and methods of diagnosis,
prevention, and treatment, and;
4. technical-instrumental, representing a set of devices and tools used
in medical practice.
Analysis of the Specialized Database of the State Enterprise “Ukrainian
Institute of Intellectual Property” “Inventions (useful models) in Ukraine”
by the search query “treatment” shows that the most popular intellectual
property objects of patent law are methods of treatment, followed by devices
for treatment, methods of medical diagnosis and forecasting of human
diseases, strains of microorganisms, viruses, fungi. One of the examples of
such a patented invention is the patent “Method of treatment of pulmonary
tuberculosis” (patent No. 1808), which belongs to the Ukrainian Research
Institute of Phthisiatry and Pulmonology named after F. G. Yanovsky
(Teremetskyi et al., 2019).
It is likely that in the period of post-war development, intellectual
property objects in the eld of health care, which will relate to the
psychological and psychiatric component of human health, will become
even more popular, since the full-scale militarized attack of the Russian
Federation on Ukraine, which is accompanied by unprecedented cruelty
and inhumane treatment of human rights and freedoms, aggravated both
the general psycho-emotional state of the entire Ukrainian society and the
state of its individuals who were directly aected by the criminal actions of
the aggressor state, or suered an irreparable negative impact as a result of
their own excessive empathy and emotional instability.
At the same time, only relatively uniform active activity within each
specied group will allow bringing the healthcare sector to a new level,
which will be characterized by an adequate level of providing the population
with high-quality medical services.
At the same time, it is worth noting that inventions in medical practice
dier from other inventions in the eld of industrial application, which
determines their special status among objects of intellectual property that
are used in other spheres of social life. Medical inventions have a special
eld of application - this is medical practice. Application of the invention
in medical practice has a direct connection with human rights, in particular
the patient’s right to life and health care.
Therefore, medical inventions have a peculiarity, which is that they
have their own species division determined by the eld of application of the
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Olha Kronda, Olena Chomakhashvili, Olena Ponomarova, Oksana Kashyntseva y Inha Kryvosheina
The role of intellectual property in the post-war development of the health care sector
invention (method of treatment and diagnosis); medico-biological or clinical
research (tests) must take place in medical facilities, medical centers and
sanatorium-resort facilities of Ukraine for further use in medical practice;
must meet ethical requirements (Teremetskyi et al., 2019).
The last criterion of the specicity of intellectual property objects in
the eld of medicine is quite debatable, in connection with which it aects
the general state of the introduction of innovations in the specied eld.
Thus, any scientic medical discovery must be accompanied by thorough,
in particular, experimental research, as it concerns human life and health.
The Declaration of Helsinki declares that scientic research in the
eld of biology and medicine is carried out without hindrance, subject to
compliance with the provisions of this Convention and other legal provisions
that guarantee human protection. Scientic research on humans can be
conducted only if there is no alternative, the eectiveness of which would
be similar to the eectiveness of research on humans. The risks to which
such a person may be exposed must be commensurate with the potential
benet from the research (Kashintseva, 2013).
Thus, for objects of intellectual property in the eld of medicine, it
is important to maintain a balance between scientic novelty and its
signicance for treatment and philosophical humanism, which calls on
scientists in this eld to refrain from reckless research.
The eld of health care is also connected with other objects of
intellectual property, however, these objects are generally related to the
commercialization of this eld, so they are not particularly important,
in particular, for post-war development. For example, a business entity
engaged in the production and distribution of relevant drugs, or an entity
engaged in medical practice, may own such intellectual property objects as a
commercial (brand) name, a trademark (signs for goods and services), trade
secret. The specied objects of intellectual property services distinguish
their subjects from other representatives of their type of activity but are not
directly related to the main purpose of the existence of the healthcare sector
- maintaining the physical and psychological health of society.
In addition, the use of intellectual property in the eld of health care can
also be divided by purpose:
1) objects of intellectual property used in the process of providing direct
medical care (such objects were mentioned above), and;
2) intellectual property objects used to improve service.
This group of objects can include, for example, various devices,
programs, applications, and databases, which will help make the eld of
health care more understandable and accessible, as well as facilitate the
administrative component of providing medical services. Such an object
can be, for example:
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• the database of patients of the relevant medical institution, which
will minimize the need to spend time on re-lling personal data
about the patient, his state of health, and the results of previous
visits to the institution, and;
• a suitable mobile application for an independent, convenient, and
accelerated appointment with a doctor in the relevant institution,
obtaining prescriptions for medicines.
A striking example of organizational modernization at the state level
in the eld of health care is the introduction and mandatory use of the
Electronic Health Care System in Ukraine (eHealth) - a two-component
system in which the user interacts with the central database through the
electronic medical information system. The specied system, in addition to
the possibility of obtaining electronic prescriptions for drugs, and choosing
a doctor, contributes to the creation of space for innovations in medicine
(machine learning, big data, blockchain), which is stated in the main goals
of the system (Electronic healthcare system in Ukraine, 2023).
Thus, the state clearly showed its desire for changes in the medical eld
and demonstrated its interest in it.
The above shows that Ukraine understands the importance of intellectual
property, in particular, for the post-war development of the healthcare
sector, and aims to encourage it, but it is currently impossible to speak of
complete readiness for its eective and active implementation.
Thus, among the main systemic factors that prevent the formation and
development of the medical and biotechnological industry of Ukraine,
it is possible to single out the lack of a systemic legislative framework
that regulates the relevant industries, including a certain imperfection
of legislation in the eld of intellectual property, which would take into
account the specics of medical and biotechnological objects of intellectual
property (Nimko, 2017).
As an example, the Law of Ukraine “On the Protection of Rights to
Inventions and Utility Models”, which regulates the legal protection of
relevant objects of intellectual property, in accordance with the provisions
of Part 3 of Article 6 of the said legislative act, does not apply to surgical
or therapeutic methods of treatment of humans or animals, methods of
diagnosing the human or animal body. This provision does not apply to
products (substances or compositions) used in diagnosis or treatment (Law
3687-XII, 1993).
However, practice shows that methods of treatment are objects of
intellectual property and may well fall under the concept of the invention
(utility model), therefore they need proper registration and protection,
against the background of which there are gaps in the Ukrainian legal
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Olha Kronda, Olena Chomakhashvili, Olena Ponomarova, Oksana Kashyntseva y Inha Kryvosheina
The role of intellectual property in the post-war development of the health care sector
framework, which currently does not cover all needs to ensure the proper
level of implementation of some types of intellectual property objects in the
eld of medicine.
Among the most problematic issues for the healthcare sector are: patent
protection terms, utility model and industrial design patent protection,
“evergreen” patents, compulsory licensing, and exhaustion of intellectual
property rights. These problems create negative phenomena in the form of
the unavailability of medicines for the patient (Datsko, 2018).
Thus, within the limits of patent law, the issue of observing the public
interest when inventing an invention (useful model) valuable from the point
of view of human health is acute. Restrictions on the disposal of property
rights to intellectual property objects are the reason for the impossibility
of eective widespread use of the corresponding object, which results in
irreparable deterioration of human health and even loss of human lives.
Currently, there is still no legal position in Ukraine regarding the limits
of the inventor’s right to his invention and the right of an individual to
ensure the proper state of health on the part of the state. Thus, due to the
lack of priority of public interest, many objects of intellectual property in
the eld of medicine are sold abroad with the aim of obtaining prot by the
subject of copyright or due to the bureaucracy and diculty of obtaining
patents in Ukraine, lack of funding, while Ukrainians are forced to use such
objects for signicant costs or do not have the opportunity to use them at
all.
For example, Ukrainian scientists invented the technology for the
production of batulin, which is an antibiotic with a strong eect against
staphylococcal infection, but due to the lack of appropriate funding in
Ukraine, they were forced to sell such technology to Belgium for interest
from the sale of the nished medicinal product on the European market
(Ilyashenko, 2014).
A similar situation occurred with the Kharkiv scientist A. Malikhin, who
invented a special device for conducting blood analysis of blood sampling
bases. The specied device in the form of a sensor is placed on the patient’s
neck and stomach and reads the relevant data, which later appear on
the computer monitor as 117 indicators of human health, necessary, in
particular, for establishing a diagnosis. However, even here Ukrainians did
not benet from this invention, as it is produced by a private company and
sold abroad (Ilyashenko, 2014).
Therefore, cases, when Ukrainian patients are forced to pay for the
monopolization of treatment and diagnostic methods, are not an exception,
which is unprecedented for Europe. At the beginning of the XXI century. the
Baltic countries and Georgia faced similar problems. However, they quickly
got rid of the philosophy of “absolutization of intellectual property rights”
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imposed by the pharmaceutical and medical lobby and speculations about
the nancial costs of developing a new innovative product (Kashintseva,
2015a).
According to the Agreement on Trade-Related Aspects of Intellectual
Property Rights (TRIPS), member states (signatories of the agreement) can
use a signicant number of its exible provisions at their own discretion and
decide, in particular, the issue of exclusion from legal protection by patent
legislation of diagnostic, therapeutic and surgical methods of treatment.
Currently, Ukraine has not used this privilege (Kashintseva, 2015b).
Thus, taking into account that Russia’s war with Ukraine activated
many internal political reform processes, it is worth addressing the issue of
determining priorities between the property rights of intellectual property
subjects in the eld of health care and the public interest in ensuring the
proper level of prevention, diagnosis, and treatment of the population. Just
as in copyright in the eld of health care, a fair solution to the problem
of the inventor’s property interest can be compensated for the use of the
invention by the state.
The given examples of the leakage of important results of intellectual
activity in the eld of health care of Ukrainian medical scientists not only
demonstrate the losses of Ukrainian society from the imperfect protection
of their rights to an adequate level of medicine but also illustrate the
unrealized possibility of economic growth of the state at the expense of
foreign investments that could have been attracted for the production and
distribution of certain object of medical intellectual property.
In the post-war period, more than ever before, Ukraine will need large
funds to restore the improvement of temporarily occupied and other aected
territories, infrastructure, and compensation for losses of human and
housing stock, in connection with which the inow of capital investments
and other investments in Ukrainian products, in particular, created within
the sphere of health care, is a necessary condition for the reconstruction of
Ukraine and the achievement of its development goals.
An alternative for the eective development, in particular, of the
healthcare sector in the post-war period is to also consider the issue
of stimulating the creation and development of spin-o companies, in
particular university ones.
The experience of the USA conrms that one of the eective mechanisms
for identifying and using objects of intellectual property rights, in
particular, in the eld of biotechnology, is the creation of management
structures, such as spin-o companies, which are widely a recognized way
of commercializing the results of scientic research (objects of intellectual
property rights). These university structures directly enter the market,
accordingly, there is a great chance of success for spin-os (additional
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Olha Kronda, Olena Chomakhashvili, Olena Ponomarova, Oksana Kashyntseva y Inha Kryvosheina
The role of intellectual property in the post-war development of the health care sector
sources of income). The emergence of this new American model and its
enormous popularity in the biotechnological sector forces other countries
to reconsider the relationship between university science and industry
(Korogod and Novorodovska, 2020).
Thus, the activity of such companies is risky, but it will allow expanding
the opportunities of universities or other scientic institutions conducting
relevant research in the eld of medicine, the results of which fall under the
characteristics of intellectual property objects, to enter the wide market,
that is, to make an object of intellectual property, which has important
public importance, more accessible.
Conclusions
Intellectual property is an important achievement of modern society,
which is evidenced by the impossibility of proper development of any
sphere of social life without its use since intellectual property is designed
not only to ensure the property and non-property interests of the subject
of the specied property but is aimed at ensuring the needs of society in
general in the appropriate sphere, where objects of intellectual property
nd their application.
Despite the above, the role of intellectual property objects in the eld
of health care is currently not suciently appreciated, as a result of which
there are gaps in the regulation and protection of such objects, an imperfect
conceptual apparatus, and a limited worldview regarding their use in
practical medicine.
The post-war development of the health care sector should be based
on the principles of maximum involvement of the results of intellectual
activity in the form of objects of copyright and patent law on issues related
to medicine, as well as aimed at ensuring the digitization goals of the state,
since only under the condition of such involvement is it possible there will
be eective development of the specied area, which in turn will lead to the
formation of a physically and morally healthy society, increase in the level
of public trust in the government and its social programs, attraction of a
signicant amount of foreign and domestic investments, improvement of
the reputational status of Ukraine at the international level.
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Esta revista fue editada en formato digital y publicada
en julio de 2023, por el Fondo Editorial Serbiluz,
Universidad del Zulia. Maracaibo-Venezuela
Vol.41 Nº 78
