[Ip-health] First thoughts on the petition to the Medicines Patent Pool Foundation

Jamie Love james.love at keionline.org
Mon Oct 10 14:51:10 EDT 2011


Below is a link to a 2,227 word petition begin circulated about the
medicines patent pool, probably with considerable input from IMAK and the
ITPC.

http://www.ipetitions.com/petition/mpp/

The petition is highly critical of the MPP.  It has at this point a large
number of signatures.   While we agree with some parts of the long petition,
we disagree with other parts, and will not be signing the petition.   In our
opinion, some parts of the petition repeat assertions that are not accurate,
and do not provide a helpful or balanced view of what the Gilead licenses
did and did not do.  In some other areas, we agree with the concerns set out
in the petition, for example, as regards the importance of permitting
generic product outside of India -- a topic that we also think can be
modified.

When we have some time to go over the technical details, we will comment
further.  But in general, the petition will be seen by many, including those
in UNITAID, as part of an effort to kill the patent pool, or remove its
current leadership.  If this effort succeeds, where does that leave
everyone?

In theory, the licenses could have been better, and indeed, Gilead may agree
to further amendments -- for example, to allow products from some countries
outside of India.  However, the sweeping changes in the licenses that are
set out the petition, while desirable, were not about to happen, and I
think, won't happen, without something more substantial changing the
negotiation.    People can set the bar higher -- but setting the bar too
high means no licenses at this point.

If the patent pool is stopped from negotiating further licenses, either
telling them to stop or by setting the bar too high to get further licenses,
I would ask, why is that a good thing?

There are some people who want to (a) change national laws to eliminate
patents on drugs, and failing that to (b) invalidate patents that have been
granted, and failing that to obtain (c) voluntary or (d) compulsory licenses
(in different sequences).    No one that has signed the petition and no one
that has not signed the petition is going to eliminate all of the laws
requiring the granting of patents, even in LDC countries (Since 2001, there
has NOT been a rush to change patent laws in LDCs).  No one is going to
invalidate relevant patents on HIV drugs in 150 countries.  No one is going
to obtain compulsory license in all countries where patents exist, and
without some big change in the negotiating strategy, no one is going to
obtain voluntary licenses for all products and all countries.  For the tens
of millions of persons living with HIV, all of these mechanisms are
important.

As I noted earlier, in some areas, we agree with the petition.  KEI has long
taken the position that the MPP should issue standardized licenses, and that
the various proposals for the license should be presented for everyone to
review  and comment, before they are signed.  The MPP is a norm setting
process, and it should be open and inclusive.

The MPP can operate in a more transparent manner than it has, although, in
defense of the patent pool, it has had an open door, and always been willing
to meet with people, take calls, and answer questions.  It is only recently
than many groups have begun to engage on the technical details, and that
discussion has not always been well informed on some key issues.

But even with a transparent process, there is the reality that the major
patent owners are not all ready to give up their patent claims in all
developing countries.  This is not the fault of the patent pool.   A good
strategy going forward needs to address this reality, and present a feasible
path for access to persons living with HIV.

Without some game changing innovations in the negotiating strategy, the
patent pool licenses from big drug companies will only cover some products
and some countries.   In our opinion, the most important thing to push for
in the licenses is that the licenses are open, not bundled, and that they
freely permit license holders to challenge patents, patent laws, and obtain
compulsory licenses.   The MPP licenses did this.  The many countries left
outside of the license area have to have a strategy to obtain access to the
new drugs.  The MPP licenses do make them better off in one important way --
they create a competitive source of supplies, in the event that they can
obtain a paragraph 6 request from India to supply their markets.  No one
thinks this is perfect.  But people who are being negative should set out
the alternatives.

-- 
James Love.  Knowledge Ecology International
http://www.keionline.org, +1.202.332.2670, US Mobile: +1.202.361.3040,
Geneva Mobile: +41.76.413.6584, efax: +1.888.245.3140.  Sometimes I am using
my MaxRoam number: +447937390810
twitter.com/jamie_love


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