[Ip-health] LAT op-ed: Cheap HIV drugs are more important than patents

[robert weissman]

http://www.latimes.com/news/opinion/sunday/commentary/la-oe-santoro9oct09,0,7919978.story?coll=la-sunday-commentary
/From the Los Angeles Times/


  Cheap HIV drugs are more important than patents

African countries should follow Thailand's lead in manufacturing their
own affordable medication in the face of U.S. pressure.
By Lara Santoro

October 9, 2007

In January, the Thai government gave its domestic drug manufacturers
carte blanche to effectively copy the formula for Abbot Laboratories'
AIDS drug, Kaletra, and reproduce it in Thailand at a fraction of the cost.

A storm of protest ensued. The U.S. placed Thailand on a "priority watch
list" of badly behaved countries. The European Union followed suit with
a sharply worded letter from Trade Commissioner Peter Mandelson
lamenting Thailand's outrageous disregard for Abbot's intellectual property.

Yet, contrary to common perception, Thailand's move was, and remains, in
perfect observance of international law. The Doha Agreement on
Trade-related Aspects of Intellectual Property Rights, signed by all
members of the World Trade Organization, stipulates that "every country
has the right to grant compulsory licenses and the freedom to determine
the grounds upon which such licenses are granted."

"Compulsory" licenses essentially allow governments to revoke patents
when they are deemed to work against the public good, either by stifling
competition or unreasonably restricting access to a product. Once a
royalty fee is negotiated and a time limit set, governments are free to
compel the original patent holder to hand over its intellectual property.

The U.S. government routinely grants compulsory licenses for purely
commercial reasons, largely to streamline production of consumer
electronics and military hardware. Five such licenses were issued in the
last year alone, one of them specifically to Abbott. To no one's horror
or, frankly, interest, Italy recently issued a compulsory license for a
drug that treats enlarged prostates.

Thailand's compulsory license addresses a far starker reality -- in a
country of 65 million, 650,000 people (one in every 100) is infected by
the AIDS virus. With soaring temperatures -- and refrigeration the
exception rather than the rule -- heat-stable drugs such as Kaletra are
crucial. Kaletra also has the advantage of low toxicity; for people
whose livers have withstood years of harsh antiretroviral treatment,
Kaletra is a gentler, but prohibitively priced, passport to life.

Why, then, has the Thai government's attempt to acquire a lifesaving
drug run into a wall of corporate indignation and government censure?

The standard answer is that pharmaceutical advances are based on the
respect of intellectual property. Without the protective role of
patents, the argument goes, drug makers would fail to recover their
research-and-development costs and consequently shy away from pursuing
new drugs.

The truth is that more than half of all antiretroviral drugs were
researched entirely on U.S. government grants. Both lopinavir and
ritonavir, the two antiretroviral agents in Kaletra, were researched
with public money. "Heck, we paid for them," said James Love, director
of the Washington-based Consumer Project on Technology.

The pharmaceutical industry lives in fear of a cheap-drug domino effect.
Thailand's compulsory license could inspire the entire continent of
Africa -- where 70% of the world's 40 million HIV/AIDS cases are found
-- to issue licenses for a series of drugs.

Countries such as Kenya and Uganda, not to mention South Africa, have
not only the manufacturing base needed to copy and reproduce drugs for a
fraction of their cost, they also have the right. So what's stopping
them? "There is a history of trade pressures," Love said. "Very few
countries are willing to face such pressures."

Despite death on an unimaginable scale, talk of compulsory licensing
remains anathema in most of Africa, so millions of lives are left in the
hands of a well-meaning yet ineffectual group of international donors,
whose solution to the problem has been to purchase and distribute
generic AIDS drugs made in India and Brazil. It's a noble effort, but
with pitiful results. Fifteen years after the invention of
antiretrovirals, only one in four Africans has access to them.

But it gets worse. For many of those who survived thanks to first-line
treatments, the time has come to switch to newer, less-toxic drugs --
all of them patented, none of them even remotely available. "We're
starting from zero again," said Buddhima Lokuge, U.S. manager of Doctors
Without Borders' "campaign for access to essential medicines." By the
time generic competition kicks in for the newer drugs, millions of
people will have died unnecessarily.

The AIDS epidemic will constitute the single greatest loss of life in
modern history. It is impossible for us in the West to conceive of death
on such a scale. Far more difficult to understand, however, is the
arbitrary nature of this holocaust: The drugs exist, why can't people
have them?

African countries should find the resolve to follow Thailand's example
and grant compulsory licenses when they see fit. In so doing, they would
put an end to a drug monopoly whose human cost brings shame to us all.

Lara Santoro worked as a journalist in Africa from 1997 to 2004.