[Ip-health] IP Watch: Corporate Self-Interest And Strategic Choices: Gilead Licenses To Medicines Patent Pool

Baker, Brook b.baker at neu.edu
Thu Jul 21 13:04:09 PDT 2011

Intellectual Property Watch

Corporate Self-Interest And Strategic Choices: Gilead Licenses To Medicines Patent Pool

By Prof. Brook K. Baker<http://www.ip-watch.org/weblog/2011/07/21/corporate-self-interest-and-strategic-choices-gilead-licenses-to-medicines-patent-pool/#bio>, Health GAP

Summary: Despite some important advances to the scope of its previous purely voluntary licenses on key antiretroviral medicines, Gilead’s licenses with the UNITAID-sponsored Medicines Patent Pool (MPP) contain unfortunate restrictions that undermine the potential impact of the MPP on access to more affordable generic ARVs of assured quality throughout the developing world. Major defects in Gilead’s licenses include their geographical exclusions of many low- and middle-income countries in North Africa, Asia, and Latin America and the bizarre provisions restricting licenses to Indian generics only and requiring that all licenses source Active Pharmaceutical Ingredients only from Gilead or from licensed Indian suppliers. A careful review of available information on Gilead’s patent landscape reveals that it is relying on weak tenofovir patent claims in India as the basis for collecting royalties on sales in 109 of 111 countries where it has no patent claim whatsoever. Generics companies may wisely choose to delink Gilead’s tenofovir API license from the licenses for its pipeline medicines so that they can supply not only those 109 countries (plus India), but also many other middle-income countries where Gilead holds no blocking patent, such as Brazil. In addition, countries should closely analyze Gilead’s patent claims domestically and in India to ascertain whether they need to issue compulsory licenses on Gilead products. If so, sec. 92A of the Indian Patents Act is easily used to permit export of needed quantities to countries with insufficient local manufacturing capacity. Indeed, excluded countries should act quickly and decisively to signal both to Gilead and other ARV right-holders that refusal to cooperate fully with the Patent Pool will result in self-protective measures to access affordable medicines.

Professor Brook K. Baker

Health GAP (Global Access Project)
Northeastern U. School of Law
Program on Human Rights and the Global Economy
400 Huntington Ave.
Boston, MA 02115 USA
Honorary Research Fellow, University of KwaZulu Natal, Durban, S. Africa
(w) 617-373-3217
(cell) 617-259-0760
(fax) 617-373-5056
b.baker at neu.edu

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