[Ip-health] The No-Patent Honeymoon is Over

Baker, Brook b.baker at neu.edu
Wed May 15 14:23:42 PDT 2013

US global AIDS policy and the pragmatics of universal access to treatment are at a crossroad.  When activists approached Indian generics in 2001 to make first-generation ARVs available for a dollar day, Cipla could and did say "yes." It could say yes because none – emphasis none – of the medicines needed were at that time patent protected in India.  Because India had generic companies that could produce to global standards and because they could produce and deliver large quantities, all we needed was money – and we got increasing sums from the Global Fund and the PEPFAR for nearly a decade.  Once medicines were being produced at efficient economies of scale and as competition increased prices plummeted even further.  Even an improved first-line regimen containing tenofovir instead of stavudine costs less that $120 pppy.

That honeymoon is over – the romance of cheap, unpatented medicines and expanding resources is over.  Now we face widespread monopolies on second- and third-generation ARVs and donor funding for global HIV and AIDS is shrinking for the first time.  It is this crisis that is making AIDS treatment activists so anxious – and anxious on multiple fronts.  US activists in particular are worried about the direction of US trade policy with the USTR and the White House continuing to pursue diplomatic efforts and unfair trade agreements (like the Trans-Pacific Partnership Agreement) that will strengthen and lengthen patent and data exclusivity monopolies throughout the world.  We are worried about the Department of Health and Human Services which is undermining efforts to investigate alternative incentive mechanisms to promote innovation of needed medicines and other medical technologies not only for HIV and AIDS, but for non-communicable diseases and even neglected tropical diseases.  We are worried that that same department is subverting efforts to investigate a treaty with other countries to make investments in research and development comparable to those that the US makes a routine matter.

And we are worried about the future direction of US global AIDS commitments and the role that the Office of the Global AIDS Coordinator will play in the future.  Will the new global AIDS ambassador prioritize the interests and perspectives of Big Pharma?  Will we see access to improved first-line and necessary second- and third-line medicines become so expensive that the mission and reach of PEPFAR will dwindle rather than expand?  Right at the time when new WHO treatment guidelines are going to start catching up with the US guidelines and when we realize that we are 15 million people short of reaching the 25 million people who should now be on treatment, are US health and trade policies going collide with health the predictable loser?

We need policymakers in key positions in the White House, in DHHS, and at OGAC that are wiling to stand up to Big Pharma and the army of lobbyists and influence peddlers they employ.  The no-patent honeymoon may be over, but the hard work of building a sustainable relationship between innovation and access is not.

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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