[Ip-health] Almost 100 organisations demand reform of African Regional Patent Office (ARIPO) to improve access to medicines

Lotti Rutter lotti at healthgap.org
Mon Nov 18 03:27:00 PST 2019

Almost 100 organisations demand reform of African Regional Patent Office
(ARIPO) to improve access to medicines
Allan Malleche (KELIN): +254 708 389 870 | amaleche at kelinkenya.org
Lotti Rutter (Health GAP): +27 82 065 584| lotti at healthgap.org

*ARIPO’s rules on granting patents favours the interests of pharmaceutical
companies over peoples’ right to access to affordable medicines*

Monrovia, Liberia — More than 90 civil society organisations are today
calling for urgent reform of the Harare Protocol of the African Regional
Intellectual Property Organization (ARIPO)
order to ensure people have access to more affordable medicines. The
organisations demand that Ministers representing ARIPO Member States — who
are meeting for the ARIPO Administrative and Ministerial Councils from 18
to 21 November in Liberia to change how they grant patents on medicines, in
order to promote cost-cutting generic competition.

ARIPO is a regional mechanism that administers the filing, examination and
grant of pharmaceutical patents for 18 countries in the region that are
contracting parties to the Harare Protocol. This Protocol is the legal
framework that sets out the rules for the administration of patents,
utility models and industrial designs for parties to the Protocol.

“To combat growing epidemics such as drug-resistant tuberculosis, diabetes
and cancer — where a single drug can cost hundreds or thousands of dollars
to treat just one person — ARIPO’s rules for granting patents, laid out in
the “Harare Protocol,” must be changed in order to facilitate access to
more affordable generics, rather than granting undeserving patent
monopolies to multinational pharmaceutical companies,” explained Lotti
Rutter from Health GAP, a global HIV advocacy organisation working across
several countries in the region. “ARIPO Member States have some of the
highest burdens of disease in the world. The price of medicines in these
countries determines whether the government will be able to provide
treatment for these diseases to its people or not. When medicines are
unaffordable, people pay with their lives.”

To date, ARIPO has failed to utilise many of the key public health
safeguards allowed under international law and championed by national and
regional bodies throughout Africa.  Instead, ARIPO continues to grant
multiple unworthy pharmaceutical patents that make medicines unaffordable
to patients and governments. Not only does excessive, unnecessary patenting
have a direct impact on whether countries have access to affordable
medicines, but also on whether the ambition of a robust generic industry in
the region will be realised.

“We are gravely concerned that governments who make ARIPO’s rules are
failing to promote public health and are prioritising patent fee collection
instead. While global patent laws recognise and exempt least developed
countries (LDCs) from granting any pharmaceutical patents, ARIPO continues
to undermine this right by granting patents at the regional level despite
the fact that the vast majority of ARIPO member states are LDCs. ARIPO’s
grant of pharmaceutical product patents is also inconsistent with national
patent laws such as in Uganda, Rwanda, and Liberia that have nationally
implemented the pharmaceutical exemption,” argued Moses Mulumba from the
Centre for Health, Human Rights and Development (CEHURD) in Uganda.

Furthermore, the lax application of patentability standards and the absence
of rigorous substantive examination in ARIPO has allowed pharmaceutical
companies to continue their notorious practice of “patent evergreening”. By
obtaining patents over minor changes to known compounds, pharmaceutical
companies prolong their market monopoly beyond the initial 20-year patent
term. This type of excessive patenting — including granting multiple
patents on new forms, new uses and new formulations of a known compound —
blocks competition from more affordable generic versions and maintains
artificially high prices for extended periods of time. This is hugely
problematic for public health.

The situation is worsened, as other key public health safeguards that are
common in countries — such as administrative procedures to allow third
parties to oppose the grant of pharmaceutical patents — are absent from the
Harare Protocol.

In 2017 the Council of Ministers mandated the ARIPO Secretariat to “explore
and formulate concrete proposals aimed at addressing policy and legal
incoherencies that impact access to health technologies and in the Member
States of ARIPO, take actions accordingly and report to the Governing
Bodies of the Organization”. However, to date, no action has been taken to
reform the Harare Protocol and improve ARIPO’s practices and procedures
that will rectify this situation.

“Civil society has presented concrete proposals
the ARIPO Secretariat on what reforms need to take place. However,
disappointingly to date, no action has been taken to discuss these
proposals. We have repeatedly attempted to engage constructively in the
process and have presented multiple requests to participate, but have been
shut out despite early promises that ARIPO would engage with civil society
stakeholders and experts,” says Allan Malleche, from the Kenya Legal and
Ethical Issues Network on HIV and AIDS (KELIN).

“Now is the time for urgent action. This is not just about legal
technicalities — ARIPO’s decisions affect the lives of many people living
across the region. In particular, we call on Ministers and Heads of Patent
Offices attending the ARIPO Governing Body meetings in Liberia to ensure
that ARIPO establishes a credible and transparent “TRIPS Flexibilities
Working Group” to discuss and develop proposals to implement public health
safeguards in the Harare Protocol, including those recommended by civil
society. Further, they must ensure civil society — as well as public health
and development experts such as UNDP, WHO, UNAIDS and UNCTAD — are
permitted to participate and sufficiently represented, with timely access
to information about meetings and documents.

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

Cell: +27 82 065 5842 (South Africa)
Phone: +1 347 263 8438 x104 (US)
Twitter: @HealthGAP @lottirutter
Skype: lotti.rutter

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