[Ip-health] Daily Maverick Op Ed: Should we respect patents or people?

Lotti Rutter lotti at healthgap.org
Fri Oct 26 01:30:11 PDT 2018

*Should we respect patents or people?*
*By Lotti Rutter and Maureen Milanga*

*26 October 2018*


The World Intellectual Property Organization (WIPO) descended on Sandton in
South Africa this week in a bid to push their patent maximalist agenda on
decision makers, government officials, and judges from across Africa. For
South Africa to play host to a conference titled “*Respect IP*” is an
affront to the millions of people who have died and those who continue to
suffer without access to the medicines they need thanks to the greed of
pharmaceutical corporations. The intellectual property (IP) system WIPO so
wants the African continent to respect plays no small role in helping big
pharma hold patients and governments hostage to their profit grabbing.

Global patent rules are governed by the Agreement on Trade Related Aspects
of Intellectual Property Rights – or “TRIPS” for short. According to TRIPS,
members of the World Trade Organization (WTO) must award 20-year patents to
new, inventive and industrially applicable inventions, including medicines.
The problem is that patent-holding corporations use this 20-year period to
prevent competition and charge whatever price they feel like for medicines.
For profit hungry pharma, this means setting unjustifiably high prices to
make huge profits. Only after the patent ends and more competitors enter
the market do prices eventually fall. Countless lives are lost waiting for
this process to unfold.

Whilst TRIPS guarantees 20-year patents, it also guarantees a number of
public health safeguards that countries can freely and legally use to
prevent the abuse of patents. Using these public health safeguards is
nothing new or controversial. In 2001 – following the infamous case where
39 drug companies took Nelson Mandela to court for trying to put a few of
these safeguards into law – the WTO Doha Declaration on the TRIPS Agreement
and Public Health was signed. This Declaration reminded the world that
so-called “TRIPS flexibilities” exist and that countries are legally and
rightfully able to use them as they want.

Yet industry and their proponents, such as WIPO, continue to flex their
muscles to undermine and cause confusion around these flexibilities. They
incorrectly frame TRIPS flexibilities as being radical and unnecessary
interventions that are risky for future innovation and foreign direct
investment (FDI) – myths that have been dispelled time and again.

For instance, the reality in South Africa is that 35 multi-national
pharmaceutical companies shut down after the country adopted TRIPS in 1997
– instead of receiving more FDI as promised, companies left the country in
droves. In contrast in India, a country famously known for using TRIPS
flexibilities, FDI is flourishing. Despite threatening to leave India in
2012 if it didn’t grant a secondary patent on a salt version of an existing
medicine, the pharmaceutical company Novartis actually expanded its
operations in the country after the Supreme Court ruled against them. The
myth just does not hold up.

The same is true for innovation. We are repeatedly told that patents are
the only way to secure future research and development efforts. However,
wherever the costs of research and development of new medicines have been
analysed (in the cases where researchers have been able to access this
non-transparent information), we have found that the costs pale in
comparison to the profits. Novartis, for instance was making back its
return on investment for imatinib mesylate (a cancer drug also known by
its’ brand name, Gleevec) every 13 days in 2012, whilst suing India for not
granting a secondary patent on this medicine. Moreover, if weak patent
systems grant easy patents on slightly modified medicines, and make money
off of this, then why would companies invest in more risky but neglected
research? Also, if companies are motivated by high profits, then why would
they make medicines for diseases affecting poor people, or few people, or
medicines that should be used in a restricted manner? For people with TB
who have seen a measly two new medicines developed in 60 years, and as we
approach a terrifying post-antibiotic era, the patent system fails to
deliver. These realities point to the limits of patents when it comes to
encouraging medical innovation to save and improve lives, and bolster the
case for exploring the many other ways of remunerating creators, including
prizes and pooled funding.

However, these false narratives are so successfully peddled by the machines
of big business and their proponents like WIPO, that despite great need,
most countries haven’t used TRIPS flexibilities effectively, fully or at
all. For years South Africa has blindly handed out patents (mostly to
foreign companies) without scrutinising to see if they are deserved and has
never issued a compulsory license to date. In contrast, ironically, the
United States is perhaps the world’s most frequent user of compulsory
licenses. Yet anyone who dares to try to do the same is singled out as a
bad trade partner and put on the US Special 301 Watch List – “*do as we say
but not as we do*”.

Countries should be provided with support to amend national patent laws to
incorporate all TRIPS flexibilities. Instead WIPO provides behind the
scenes technical “assistance” to governments amending their laws that would
see harsher patent regimes that further protect industry interests. Instead
of adopting and using TRIPS flexibilities to their fullest extent,
countries are pushed to adopt worse TRIPS “plus” measures.

WIPO has repeatedly pushed for greater enforcement of IP. Indeed, this is
their message to governments across Africa through this conference to “*Respect
IP*.” The disastrous impacts of promoting IP enforcement at the cost of
access to generic medicines have been felt sharply in Africa. In 2008 and
2009, the EU respected IP so much that they seized consignments of
lifesaving generic medicines on their way to Latin America and Africa. One
such shipment was of abacavir sulfate, a key HIV medicine on its way to a
Unitaid funded programme implemented by the Clinton Foundation in Nigeria.
It was also in 2008, that Kenya put in place anti-counterfeiting
legislation – sections in the Act caused confusion that would result in
arbitrary seizures of generic medicines under the guise of fighting
counterfeit medicines. The Act was challenged by people living with HIV who
won the case in 2012 when the High Court of Kenya held that while IP should
be protected, “where there is the likelihood, as in this case, that their
protection will put in jeopardy fundamental rights such as the right to
life of others, I take the view that they must give way to the fundamental
rights of citizens in the position of the petitioners.”

What the High Court of Kenya saw so clearly was the primacy of the right to
health. Decades before the onslaught of TRIPS began, the right to health
was firmly established in international law obligating governments to
respect, protect, and fulfil people’s ability to access quality healthcare.
In contrast, at its core TRIPS aims to protect individual creator
“rights”. Whilst
human rights law does mandate that governments protect the moral and
material interests of creators; this does not imply that patent “rights”
are human rights, as patents are merely one amongst many ways to reward
creators. The Special Rapporteur on Culture Rights recently affirmed that
there is no human right to patent protection, stating, “where patents and
human rights are in conflict, human rights must prevail.” Similarly, the
Human Rights Council and the Special Rapporteur on Health have both
affirmed that the right to health supersedes patents.

Nothing in the agenda for WIPO’s grand conference indicates that any of
these issues will be reflected in the presentations or sessions. The very
real negative impact that patents and their enthusiastic protection and
enforcement can have on people certainly finds little space for discussion
in this forum. African governments must take their cue from the Kenyan High
Court that was able to see through the attempts to push through greater IP
enforcement by creating confusion over issues of safety or quality of
medicines. And whilst amending patent laws and policies, African
governments will be wise to remember that the mandate of WIPO is the
promotion of patents and foreign profits, not human rights. Decision-makers
attending the conference, and the governments they represent, should check
the facts. The current patent system fails local industry, provides no
incentive for foreign investment, and impedes innovation. Most seriously,
it costs the lives and health of millions.

*Lotti Rutter and Maureen Milanga are Associate Directors of International
Policy & Advocacy at Health GAP based in South Africa and Kenya
respectively. *

*Lotti Rutter*
Associate Director International Policy & Advocacy
Health GAP

Phone: +27 81 818 8493
Twitter: @HealthGAP @lottirutter
Skype: lotti.rutter

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