PHM-Exch> 'Strong Medicine' and intellectual proiperty rights

[Claudio Schuftan]

From: Meghana Bahar meghana at haiap.org


Ecuador is issuing compulsory licences to bring down the cost of patented
medicine. Is India likely to follow suit?

Latha Jishnu / New Delhi April 29, 2010

Latin America never fails to surprise.It is now  attempting to redefine
intellectual property rights (IPRs) in a more humane framework.

First, it was Brazil which showed the way under Luiz Inacio (Lula) da Silva,
the charismatic trade unionist. Lula has done much to spur new thinking on
the inequitable IP regime in pharmaceuticals by talking on the fearsome
patent warlords in his determination to ensure that the country’s
fundamental right to health was not jeopardised by the high cost of
life-saving drugs. He did this by an adroit mixture of threats to use
compulsory licences (CLs), the flexibility offered under the World Trade
Organisation’s TRIPs agreement and by actually issuing one. Nothing has had
a more salutary effect on drug pricing than the Lula strategy.

That strategy is being taken up by other players in Latin American — and in
even more radical ways. Last October, Ecuadorian President Rafael Correa
signed a decree that would allow the country to issue CLs to ensure access
to affordable medicines. In that decree, Correa declared access to essential
medicines as a public right, basing his decision on Article 31 of the TRIPs
Agreement and the Ecuadorean Constitution.

Correa is keenly aware of the poverty of his countrymen and is even keener
to ensure that the fundamental right to health and medicines is not blocked
by an incomplete understanding of global IPR systems. Correa, as he makes it
clear, is only using the flexibilities available in the WTO rules. Two weeks
ago, on April 14, after ensuring that all laws were in place, Ecuador issued
the first CL for Ritonavir, an antiretroviral drug used to combat HIV/AIDS
to a local company, Eskegroup. Interestingly, Eskegroup is the local
distributor for Cipla, the stormy petrel of India’s generic drugs industry.

This is the first CL and more are expected in coming days as Ecuador tries
to cut the cost of its soaring health care bill. Analysts say the Ecuador
example could be widespread across Latin America once the savings in health
care costs are toted up. CLs can be granted on grounds of public interest,
in case of emergencies or to meet national security, and is applicable in
the following cases: when a patent has not been worked for three years, for
reasons of public interest, emergency or national security and for reasons
of competition.

Cut to India, where the mere mention of CLs makes the authorities markedly
nervous. Despite repeated demands from health policy experts and activists,
the government has set its face against establishing a committee to examine
the issue of CLs. Instead, it thinks a committee to negotiate prices with
patent-holders is a better bet, although all evidence points to the
contrary. However, a recent move by the Patent Office asking patent-holders
and licensees to furnish information on whether their patents were being
worked has set off ripples of speculation if India is re-examining the
issues of CLs. The rumbles so far have emanated from patent attorneys in the
pay of drug giants.

But is India ready to bite the bullet on CLs? It seems unlikely given the
widely prevalent notion in government that CLs can be issued only in the
case of national emergencies, although the law clearly states that patents
should not impede the protection of public health or in any way prohibit the
Central government from taking measures to protect public health. Besides,
medicines have to be made available at affordable rates under the law.

With the deadline for filing the information having ended on March 31, all
attention is now centred on what the Patent Office will reveal in coming
days.
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