[Ip-health] Patent Pool Controversies and the Real Battle Ahead

Gregg Gonsalves gregg.gonsalves at gmail.com
Tue Nov 22 01:27:53 PST 2011

Dear Colleagues:
Over the past few months, a coalition of groups working on AIDS and
other related issues, primarily based in the global South, have raised
a set of questions about the licenses recently negotiated with Gilead
Sciences, Inc. by the Medicines Patent Pool (MPP)
The basis of these questions is not new and is rooted in larger
concerns that groups from India, Thailand, Latin America, North Africa
and elsewhere have raised with UNITAID, and then with the MPP, since
2009.  A history of this issue, based on primary documents is
available here at:
and a newly released report of a 2 October 2011 meeting with the MPP is here at:
Since this initial critique there have been charges that this
coalition of groups wants to shut down the MPP, that the real business
of civil society is to get other companies to join the pool process,
or that the criticisms of the Gilead-MPP license have been made and
it's time to move on and stop any further debate.
Whether or not one agrees with the critique of the Gilead-MPP
license--and more and more groups are finding fault with the agreement
or at least parts of it--we probably all could agree that these
licenses raise critical questions about how we all pursue access to
AIDS medicines and other drugs.
These questions have an impact on many, many people, both in terms of
access to medicines themselves for patients, and in terms of the work
of advocating for the drugs by activists.
The issues raised by the coalition of groups earlier this year--no
matter on which side of the issues one ultimately comes down on--are
not trivial.
Even with a civil society delegation and a then-ad-hoc expert advisory
group, a fairly restricted group within the MPP made decisions on
strategies and on what were the non-negotiables in the discussions
about the license with Gilead.
The tone of the interactions with the MPP from this coalition--which
yes, have perhaps been strident--reflect the frustrations of a large
group of activists from the global South and others left out of these
crucial discussions about the Gilead-MPP license and the future of
access to medicines.
Furthermore, even some of the groups more recently expressing support
for the MPP are just having the chance to engage with the process;
they are new to the table as well.
No one is suggesting that license agreements can be done by consensus
or out in the open in a general assembly.
However, critical issues at stake could have been raised for the
widest possible discussion before entering into an agreement with
Gilead.  In fact, broader discussions about the role of voluntary
licenses in access to medicines and their impact could have been
raised in advance as well.
Instead, the license agreement with Gilead is now mired in
controversy--with some people saying it is a terrific advance for
people with HIV and others casting it as a step-backwards and some
sitting right in the middle on its strengths and weaknesses.
It didn't have to be this way.
I keep comparing this current situation to one some of us dealt with
many years ago, when activists first came on the scene in the world of
biomedical research.  We issued reports criticizing institutions like
the US National Institutes of Health, even dying-in and demonstrating
on their door-steps.
While I am sure some of these officials cried out that we were trying
to destroy the NIH and the world of clinical research, the head of the
NIH's AIDS institute--Dr. Anthony Fauci--realized that dissent was
actually a powerful tool to improve AIDS research, that our critiques
though imperfect were part of the iterative process of learning from
others, which makes great scientists, better science.  He brought his
critics to the table.
The MPP may be hunkering down, trying to whether the storm, its staff
traveling around trying to recruit allies to take on their critics,
but the leadership of the MPP could learn from Dr. Fauci and the NIH:
the activists may be unpleasant, but criticism is a critical way of
learning and doing better the next time around. I believe the MPP will
eventually come around and open its doors even to those who are
criticizing it today.
As for the activists: the way forward is not to minimize the
criticisms of the license or the MPP by your colleagues, but to engage
with these critiques together, grapple with the implications as a
community of activists, interrogate the details.  Again, to use the
clinical research analogy: if a clinical trial protocol is flawed and
needs improvement, we don't say, "hush, now, don't criticize the
study, it will bring down the NIH"--we roll up our sleeves and push to
make it better and those interactions (particularly in the old days)
are sometimes tough and sometimes confrontational.  And guess
what--activists have come down on different sides of research
protocols down the years; disagreement among ourselves aren't the end
of the world.
Over 200 leading activists and legal experts from around the world,
from groups like Lawyers Collective, the Asia Pacific Network of
People Living with HIV/AIDS, the Brazilian Working Group on
Intellectual Property, Third World Network, ITPC, I-MAK, the AIDS
Access Foundation of Thailand, Latin American Council of AIDS Service
Organizations, the Egyptian Initiative for Personal Rights, the
Treatment Action Movement in Nigeria have put a set of issues and
concerns on the table.
At the very least, criticisms of these groups should be based on a
thorough reading of the license agreement and the various
documentation and analyses that these groups have generated.  I am not
sure that this has actually been done by all of those who have rallied
to the defense of the MPP, though a few have done so.
For instance, on the day the Gilead-MPP license was announced, the
company cut 4 separate side-deals with generic producers, undercutting
the MPP.   The total number of countries newly covered by the
Gilead-MPP license is sixteen, eight of which don't have reliable
epidemiological data. Thus, the best estimate of the number of PLWHIVs
covered in these 16 countries is around 15,000.  But the press
releases around the announcement of the Gilead-MPP license made
inflated claims, which gave Gilead a lot of good PR, while the fact is
that the Gilead-MPP license's coverage is dwarfed by the number of
patients covered by the other existing agreements. Who is getting
played here?  Gilead was able to concede very little in its agreement
with the MPP and get a whole lot of praise.
If you disagree with this assessment or others made in the materials
this coalition has provided--walk with us point-by-point through the
issues, together.  In doing this, we'll have discussed some of the
issues at the heart of access to medicines as a community, learned
from each other, no matter where we end up in the final analysis.
It's not OK not to do your homework and simply say "we need the MPP to
Furthermore, this isn't about supporting the MPP or not supporting the
MPP--none of our allegiances should be to institutions and framing
this discussion in this way is as unproductive as positing that one is
for or against the NIH or the UK or South African Medical Research
Council, or the ANRS in France.
Voluntary licenses have to be the best they can be and institutions
like the MPP, have to be responsive to those affected by their
decisions--it's our job to scrutinize the MPP and its work, not
express our unconditional allegiance to it as a vehicle nor make
blanket statements that it is important to get other companies into
the patent pool as a matter of priority without any knowledge of or
template for what future licenses might look like.
Sadly, what have been attempts to raise honest criticisms have been
labeled as personal attacks or obstructionism, thus taking emphasis
off the real issues at hand and transferring the debate to 'whose side
are you on?' or making it seem as if the entire debate is really a
spat between colleagues. Dismissing their claims so casually
trivializes the work of many activists around the world who have spent
their lives fighting for access to medicines.
We are wasting time--the MPP-Gilead license SHOULD be open to wide
scrutiny as should the work of the MPP in general. It doesn't have to
be done in back-room meetings and there is no need to tip-toe around
the issues. The MPP now joins the NIH, WHO, UNAIDS, EMEA, ANRS, MRC,
MCC--the alphabet soup of institutions we've worked with and
criticized now for decades.  Since when did any institution get a free
pass from us?
What this discussion needs to be about now is the larger context: the
field of access to medicines passed its high water mark several years
ago, we are on the defensive with the multinational drug companies and
the countries that support policies that favor them over the right to
health for all.  Many of the organizations weighing in on this debate
largely ignore IP and trade issues on a day-to-day basis--the
engagement here is with a controversy not with a common, proactive
In addition, IP and trade are but one part of our work: we've dropped
the ball on a lot of the things we used to do very well.
With the economic crisis and the rise of austerity policies in the USA
and in Europe, donations and support for the Global Fund and other
critical funding vehicles for ART access are in jeopardy.  Countries
in Africa, Asia, Latin America, the Caribbean and Eastern Europe
themselves are reeling from the crisis and aren't going to fix the
stock-outs and the waiting lists for ARVs.
The real crisis today isn't about criticism of the MPP and the
solution isn't simply about collecting multi-national pharmaceutical
companies to put their IP into the pool in Geneva.
There is so much more, so much other work to do.
Geneva isn't the center of the universe, what happens there isn't the
heart of our work.
Let's talk about what we need to do to sustain scale-up of access to
ARVs and drugs and treatments for other diseases, go step-by-step
through the tasks we need to take up, the strategies we need to use at
national, regional and international levels with institutions, with
governments, with drug companies, with our local clinics.  That
discussion will have to include the role of voluntary licenses and the
MPP, but at least it will be done in the context of a broader agenda
for access to medicines, a part of the larger work we need to do.
We'll need to re-build trust at first--there have been a lot of
unfortunate things said over the past few months--but many of us have
worked together for a long time and we can get over it and we will.
Political leaders who consistently fail to step up on AIDS, TB or
health, drug companies who still gouge patients with inflated prices
for medicines, institutions that don't do their jobs and where
incompetence, laziness and corruption are rife must be laughing their
asses off, if they are even paying attention.
Here we are fighting among ourselves, because we can't get it together
to have an open, substantive conversation about the issues at stake.
We're so obsessed with our little projects and fiefdoms that we no
longer even see the need to revive the grand coalition that brought us
the successes we have today, with 6.6 million people on AIDS
treatment, but with half of those who need it, dying without.  We
surround ourselves with our friends and fellow-travelers and have lost
the patience and ability to work together with others even if we don't
share the same opinions on each and every issue.  We're often in a
state of perpetual annoyance with those we have to learn to work with
These are tough times for millions of people, where banks get bailed
out but poor people get hung out to dry.
Our survival depends on moving past this--not by squelching dissent
and thus dividing the movement--but by struggling together to try to
bridge the divide, to bring us all back together, to fight for what
really matters.
I hope for all our sakes, we're up to the task.


Gregg Gonsalves
100 York Street
University Towers, 10-D
New Haven, CT 06511
Email: gregg.gonsalves at gmail.com or gregg.gonsalves at yale.edu
Mobile: +1-203-606-9149

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