[Random-bits] Brazil puts patients before patents, rejects Bush administration pressure and issues compulsory license on important AIDS drug

[James Packard Love]

http://www.huffingtonpost.com/james-love/brazil-puts-patients-=20
befo_b_47651.html

May 4, 2007
The Huffington Post
James Love

Brazil puts patients before patents, rejects Bush administration =20
pressure and issues compulsory license on important AIDS drug

On national television Brazilian President Luiz In=E1cio Lula Da Silva =20=

has just announced a compulsory license on patents controlled by =20
Merck for the important AIDS drug efavirenz. Brazil has a large and =20
growing population of AIDS patients, and cannot afford to sustain =20
treatment without obtaining low cost generic copies of AIDS drugs.

Press coverage of today's action will likely have a narrative about =20
poor countries breaking rich country patents, but it could also be =20
presented as a larger discussion about the problems of giving =20
exclusive rights to patent owners.

Yesterday, the Wall Street Journal praised the US Supreme Court for =20
"restoring some sanity to America's runaway patent law, " by giving =20
"judges much-needed flexibility in granting or denying permanent =20
injunctions." The WSJ was referring to the 2006 decision involving an =20=

attempt to enforce an injunction against eBay, enforcing a patent =20
owner's "exclusive" right to determine who can use the invention.

The U.S. Supreme court decision in eBay made it clear that, after =20
considering the facts in the case and the public interest, a judge =20
could choose to not enforce the exclusive right, and instead =20
authorize the infringer to use the patent, in return for a court =20
determined royalty.

Outside of the U.S., when Thailand or Brazil decide to allow non-=20
voluntary use of a patent, we call it a compulsory license, and a =20
smug U.S. and European press talk about the lack of respect for =20
intellectual property in certain developing countries (the ones that =20
dare to issue compulsory licenses).

In the U.S. the WJS and others call the non-voluntary use of a patent =20=

something else -- patent reform.

Since June of 2006, U.S. courts have issued compulsory licenses on =20
patents in cases that have benefited Toyota (for patents on an =20
automatic transmission), Direct TV (set top box patents), Microsoft =20
(on DRM technology patents) and Johnson and Johnson (on a medial =20
device). The U.S. F.T.C. recently issued a compulsory license on =20
computer memory chips (the Rambus case).

Since 2005, Italy has granted compulsory licenses on patents for two =20
Merck products (an antibiotic and a prostrate and baldness drug), and =20=

one GSK products (for migraine headaches.)

For more of these examples, see here and here.

Back to Brazil, and the very important announcement today regarding =20
it's compulsory license. What does this mean for drug developers?

The Brazil decision today, which involves the first (post WTO/TRIPS =20
Agreement) compulsory license on patents on medicines for all of =20
Latin America, will likely be widely copied in the region.

It is now time for drug developers to rethink their strategy and =20
business models. Developing countries will not accept prices that the =20=

poor cannot afford. But prices that the poor can afford don't include =20=

a premium for R&D.

The answer to this dilemma is not to raise prices, but to decouple =20
the R&D incentive from the price. The most far reaching way to do =20
this would be to replace drug monopolies with large prizes


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James Packard Love
Knowledge Ecology International
http://www.keionline.org
james.love@keionline.org
Washington, DC +1.202.332.2670

"If everyone thinks the same: No one thinks." Bill Walton"