[Ip-health] Ellen ’t Hoen & Jorge Bermudez Letter to the Editor re Compulsory Licenses For Medicines

Manon Ress manon.ress at keionline.org
Wed Jun 10 09:52:06 PDT 2015

Letter to the Editor Compulsory Licenses For Medicines

Ellen ’t Hoen
Medicines Law & Policy
Paris, France

Jorge Bermudez
Oswaldo Cruz Foundation, Ministry of Health
Rio de Janeiro, Brazil


The conclusion of Reed Beall and coauthors (Mar 2015) that “compulsory
licenses are unlikely to be the best strategy for access to minimally
priced drugs when international procurement is an available alternative” is
based on a lack of understanding of the international medicines market.

“Minimally priced drugs” are generic medicines priced at close to marginal
cost. Such medicines are available in robust competitive markets where
patents do not create barriers. Where such barriers do exist, even
international procurement will mean paying high prices. For example, this
was the case with procurement of darunavir by the Global Fund to Fight
AIDS, Tuberculosis, and Malaria (Michel Kazatchkine, executive director,
the Global Fund, letter to Jorge Bermudez, October 7, 2010). It is
therefore incorrect to present “international procurement” as a sure way to
achieve the lowest possible price.

Countries where patent barriers exist cannot benefit from international
competitive markets, and those are the countries that resort to compulsory
licensing. The key question is whether those licenses resulted in lower
drug prices and increased access. Based on evidence from Thailand and
Brazil, for example, one can conclude that this was the case. 1

Recommending compulsory licensing as a “last resort” is not consistent with
international norms 2 and fails to recognize the changed environment of
pharmaceutical patenting. Most World Trade Organization countries grant
twenty-year patents for medicines. International competitive markets for
such patented products will not emerge until after the patent terms expire.

It would therefore be wiser to recommend the routine use of licensing in
government procurement of medicines than to recommend compulsory licensing
as a “last resort.”


↵ World Trade Organization. Promoting access to medical technologies and
innovation [Internet]. Geneva: WTO; c 2015 [cited 2015 Mar 23]. Available
↵ World Trade Organization. Declaration on the TRIPS agreement and public
health [Internet]. Geneva: WTO; 2001 Nov 20 [cited 2015 Mar 23]. Available

Manon Ress, Ph.D.
Knowledge Ecology International, KEI
manon.ress at keionline.org, tel.: +1 202 332 2670
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