June 27, 2005

AIDS, patents and Brazil

Posted in Uncategorized at 11:26 am by thelawthoughts

This link is great news. In essence, Brazil has decided to break the patent on the AIDS drug sold by Abbott Labs, a US drug company.

Under the TRIPs Agreement, which every WTO Member is obliged to sign up to, countries have an obligation to protect the patents of any drug which remains inside the patent protection period of 20 years. So far, so good. Drug companies have their patents as well as an iron-clad mechanism to prevent governments in developing countries from taking their ‘rightful’ profits.

I am in favour of intellectual property protection in general, but not for life saving drugs such as AIDS anti-retrovirals. Governments of developing countries tend to be on the same side. Indeed, in Art 31 of the TRIPs Agreement, a government is entitled to ‘compulsorily licence’ a drug their citizens cannot afford, in times of national emergency. I have argued in a recent essay and would argue again here that the AIDS crisis in developing countries is indeed a time of national emergency. In essence, this means governments can produce the drug internally and sell it at generic cost, effectively short-circuiting the patent of the drug company.

This sounds very useful and, according to the provisions of the TRIPs Agreement, is useful. However, drug companies tend to get a bit shirty when this mechanism is actually invoked. A group of drug companies took their case to the South African Constitutional Court to prevent the government producing their patented drugs generically. Also, when Brazil last threatened to invoke the compuslory licensing mechanism, the US took them to the WTO Dispute System. Subsequently, Brazil decided that maybe this wasn’t such a great idea.

As I see it, whenever the mechanism is triggered, drug companies and governments of countries in which these companies are incorporated go nuts. Even though this is a perfectly valid course of action, those holding patents over the drugs will do anything they can to prevent their drugs being administered without them getting the profit.

It is wonderful to see a government actually tell these drug companies where to get off. The mechanism is in place for a reason, because as a society we need to recognise how important life saving medicines are. The rights of those suffering these diseases conflict with the rights granted for patent protection. However, where WTO law provides for the overriding of these rights, a valid exercise of that right by a developing country government should not be challenged.

I will watch with interest to see where this case heads in the near future.

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