[Ip-health] Open Letter from Thai Civil Society regarding the Medicine Patent Pool

Jockey jockey.kit at gmail.com
Thu Jul 21 08:38:30 PDT 2011

*Open Letter from Thai Civil Society


*One Step forward, Two Steps back: the Agreement between the Medicine Patent
Pool and Gilead Sciences, Inc.


On behalf of the Thai Network of People Living with HIV & AIDS,
pharmaceutical academics and civil society organisations working on access
to medicines for all in Thailand, we wish to raise our grave concerns
regarding the agreement between the Medicine Patent Pool and Gilead
Sciences, Inc.

 On July 12, 2011 Gilead Sciences, Inc. announced a great success in their
contribution to the promotion of access to medicines by signing an agreement
on licensing AIDS drugs to the Medicine Patent Pool.  However, in reality
this announcement is a bad news for millions of people living with HIV in
the low and middle income countries excluded from the benefits of the Patent
Pool. Such a divisive agreement contradicts the original intent of the
Patent Pool, as a newly created mechanism to overcome IP barriers and
promote access to essential medicines for all.

 Although the Gilead agreement allows medicines produced under its license
to be shipped to excluded countries if they decide to use a public health
safeguard, known as compulsory licensing, there have been very few examples
of developing countries being able to use this public health safeguard
successfully. It required strong political will and massive public pressure
to ensure that governments use compulsory licensing in the face of pressure
and retaliation from the multinational pharmaceutical industry and its
governments. Thailand and Brazil are recent examples of countries that faced
massive backlash after issuing compulsory licenses on HIV
medicines. However, even if countries do issue a compulsory license, they
get caught in using the August 30th decision – something that history again
has shown does not work.

Whether or not such provisions are in the Patent Pool license, it makes no
difference – eventually huge numbers of people remain without access to
affordable essential medicines. Instead of pushing low and middle income
countries to take the difficult option, Gilead should not limit the
countries that can benefit from their licenses; unless they have a hidden
agenda to weaken local production capacity and impede competitiveness of
generic medicines.

 As in Thailand, where there is no patent on TDF, many countries are also
trying to impose strict patent standards and patents on TDF have been
rejected in some countries or don’t exist in many countries. But Gilead has
placed conditions before the generic companies can supply to those countries
where patent is rejected or does not exist – so the license made it more
difficult for excluded countries to get generic supply even if patent is
rejected in their country.

Regarding the agreement, it states that Gilead agrees to allow generic
manufacturers to exit the agreement for any of the drugs if they fail to get
a patent due to a legal challenge. This is not something we should be
grateful to Gilead for as, by law, other drug companies can produce and sell
their generics in the market if the originals are off-patent or fail to
prove their patentability.

 In addition, Gilead claims that the agreement with the Medicines Patent
Pool has been made public to reflect the transparency of the process.
However, the company did not provide reasons or the criteria used for
selecting which countries could benefit from their licenses. For example,
Thailand is included in the tenofovir license, even though tenofovir is not
patented in Thailand, but Thailand is excluded from licenses for cobicistat
and elvitegravir that may have patents in Thailand. What were the reasons
for the Medicines Patent Pool to accept exclusion of Thailand for the new
drugs? Is the primary objective of the Medicines Patent Pool still to be a
new mechanism to address the particular public health needs of developing

 Giant multinational drug companies are increasingly taking over the Indian
generic-drug industry - since 2008 multinational pharmaceutical corporations
have already taken over six drug companies in India. India is recognised as
the supplier of low-cost generic drugs to the world. To confine
manufacturing to only India and to limit supply sources of active
pharmaceutical ingredients (API) in the agreement is a strategy to control
the Indian pharmaceutical industry and undermine its capacity to supply
affordable generic medicines to other developing countries. The control of
API also makes it difficult for manufacturing to take place in other

Generic competition is the most effective mechanism to make significant
reduction in drug prices.  The licenses given to the Medicines Patent Pool
with such restriction will jeopardise the competition of generic medicines
by selectively giving license to Indian manufacturers only and limiting
countries who can buy the medicines from India. Therefore, the drug prices
cannot be reduced as much as they should be, and this will further limit the
number of people who can access to these medicines.

By selectively giving licenses to a limited number of countries, a
divide-and-conquer tactic has been applied to weaken the solidarity of
patient and civil society groups across the global south in fighting for
access to affordable medicines for all and by isolating the countries who
stood up to challenge the power of giant pharmaceutical industry.

 In the end, the multinational pharmaceutical industry still places its own
economic benefit before public health.  Licenses given to the Patent Pool
with such restrictions are not truly an effective solution.  Similar to
philanthropic programs in the past, the giant drug company makes use of the
contribution to the Patent Pool to present a good image to the public rather
than to address limited access to lifesaving medicines for all in the long

 Sincerely yours,

The Thai Network of People living with HIV/AIDS (TNP+)

Thai NGO Coalition on AIDS

Foundation for AIDS Rights

AIDS ACCESS Foundation

Drug Study Group

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