[Ip-health] IP Watch: Kenya Rejects Bid To Remove Governmen t’s CL Flexibilities

[Mike Palmedo]

http://www.ip-watch.org/weblog/index.php?p=741&res=&res=1024_ff&print=
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Kenya Rejects Bid To Remove Government’s Compulsory Licensing Flexibilities

By Paul Garwood
IP Watch
14 September 2007

Kenya’s Parliament has rejected a proposal to revoke the government’s
powers to issue compulsory licenses to manufacture products such as
generic medicines without patent holder approval, a move welcomed Friday
by supporters of universal access to pharmaceuticals.

The decision, made late Wednesday, protects Kenya’s ability to acquire
affordable generic medicines, such as antiretroviral treatments for
HIV/AIDS patients, without seeking permission from pharmaceutical firms
who hold the drug patent rights, Tom Mboya Okeyo, Kenya’s deputy
permanent representative to the United Nations in Geneva, told
Intellectual Property Watch.

“It means Kenya can continue to buy medicines from the cheapest source
and make them widely available for patients without being told we must
adhere to patent rights,” said James Kamau, coordinator of the Kenya
Treatment Action Movement, who witnessed the Parliament vote.

Governments can issue compulsory licenses to produce medicines more
cheaply than prices offered by drug companies without seeking patent
holder consent under the World Trade Organization Agreement on
Trade-Related Aspects of Intellectual Property Rights (TRIPS). TRIPS
allows countries, particularly in the developing world, to make drugs to
safeguard public health in national emergencies or for non-commercial
purposes.

Section 80 of Kenya’s Industrial Property Act 2001 enshrined the
compulsory licensing provisions in national law. There have been
repeated efforts to delete these provisions, initially by the state-run
Kenya Industrial Property Institute, apparently because it offered no
compensation to pharmaceutical firms whose products could be produced,
under compulsory license, by state-approved companies, lawyers have said.

Wednesday’s attempt to amend the act was defeated when parliamentarians
rejected a proposal to delete Section 80, which was among multiple
amendments in the omnibus Miscellaneous Amendments Bill. The same bill
was expected to go before Parliament in 2006 but was withdrawn at the
last minute (IPW, Public Health, 21 December 2006).

“This means Kenya will continue to exploit the flexibilities of the
TRIPS provisions to access to affordable medicines for the protection of
public health,” Okeyo said.

Ellen ‘t Hoen of Médecins Sans Frontières said the organisation was
relieved that the flexibilities in the Industrial Property Act had been
protected. “Our ability to provide AIDS medicines to over 10,000 people
in Kenya depends on the availability of affordable generic medicines,”
she said. “This would have been in jeopardy if the amendments had gone
through.”

Prominent Kenyan IP lawyer Peter Munyi said Parliament’s decision helped
ensure the availability to medicines but also enabled access in other
areas such as technology and security.

It was unclear who proposed the latest attempt to scrap the compulsory
licensing powers, Okeyo said. The closest ministries to the compulsory
licensing issue - health and trade - have denied seeking the amendments.
“The government will continue to be vigilant,” Okeyo said of future
attempts to scrap Kenya’s compulsory licensing powers.

Opponents of the amendments demanded the government reveal who is trying
to nullify the compulsory licensing provisions and discover the motives
for the proposed amendments. Kamau was unsure if pharmaceutical
companies were involved, but claims they would gain most from the
government losing its powers to produce cheap generic versions of the
patented medicines.

“Ever since the Industrial Property Act was passed, there have been
fights over its provisions,” Kamau told Intellectual Property Watch.
“Who keeps sponsoring this bill? We need to find out how it keeps being
raised.”

Ratifying the amendment would have resulted in the government
relinquishing its power to issue compulsory licenses to local
manufacturers to produce drugs for public health emergencies. It, in
turn, would have compelled authorities to negotiate directly with the
big pharmaceutical firms that hold the patents to obtain medicines.

In Kenya, between 270,000 and 300,000 people living with HIV need
treatment, of which some 150,000 receive antiretroviral therapy,
according to Kamau. Most medicines are generic versions of patented
medicines and are obtained through parallel importation, mainly from
India, which is a prime source of low cost, high quality
pharmaceuticals. Kenya has never issued a compulsory license, but came
close to in 2004 before German pharmaceutical major Boehringer Ingelheim
agreed to enter into a voluntary license agreement with Kenyan drug firm
Cosmos to produce generic versions of its patented anti-AIDS drug
nevirapine.

Paul Garwood may be reached at pgarwood@ip-watch.ch.

--
Mike Palmedo
Research Coordinator
Program on Information Justice and Intellectual Property
American University, Washington College of Law
4910 Massachutsetts Ave., NW Washington, DC 20016
T - 202-274-4442 | F 202-274-0659
mpalmedo@wcl.american.edu