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Pharmaceutical Patents
& Developing Countries


By John S. James
AIDS Treatment News

pharmaprofits.jpg - 13.52 K Over 12,000,000 people in Africa alone have already died of AIDS, and 20,000,000 more in Africa are now living with HIV, according to generally accepted estimates.

Worldwide, about 90% of people with HIV live in developing countries and have no access to modern pharmaceuticals, which often cost more than $10,000 per year; the situation is similar for many other serious illnesses including cancer and drug-resistant tuberculosis.

Until recently, U.S. policy was almost totally captive to the pharmaceutical industry--which cares little about marketing drugs in developing countries, since there is little money there, but cares very much about avoiding any precedent, anywhere, which might weaken its intellectual-property protection in the U.S. or other lucrative markets. Many drugs could sell for a tenth or less their current prices if it were not for patent restrictions.

The result is that U.S. policy stood firmly in the way of 20 million people with HIV in Africa alone who are facing death- -cutting them off from any hope of medical care which could extend or save their lives.

Today, after high-profile protests directed mostly against presidential candidate Al Gore (the major custodian of this U.S. policy toward the Union of South Africa, which has taken the lead in resisting it), the U.S. has moderated its aggressiveness against that country's efforts to expand access to medicine to more of its citizens (when allowed within WTO rules).

But this change applies to South Africa only, so protests are continuing--for example, the October 6 demonstration in Washington D.C. against U.S. Trade Representative Charlene Barshefsky, with 14 arrests-- organized by ACT UP/Philadelphia and others.

Capsule History

The GATT treaty has existed for about 50 years, but only the recent incarnation (the Uruguay Rounds, which created WTO) demanded that all countries impose U.S./European style patents on pharmaceuticals. The result is that pharmaceutical executives no longer look the other way if anyone, anywhere, manufactures modern drugs without the permission of the patent holder. Industry pressures the U.S. government to use its great power to force unworkable arrangements on poor countries which cannot possibly afford U.S.-priced medicine, making health solutions impossible and assuring millions of deaths. cbarshefsky2.jpg - 9.20 K United States Trade Representative Charlene Barshefsky

But the WTO treaty does include some safeguards--for example, "compulsory licensing," which recognizes the right of a sovereign government to license use of a patent within its borders on terms set by the government (subject to review by the WTO).

Therefore most of the protest so far on this issue has not been against the WTO, but against U.S. policy which has gone well beyond the WTO treaty in supporting the pharmaceutical industry's claim that its intellectual property interests come first, before anyone's heath needs. Some are concerned that industry might try to take away safeguards during the next round of world trade negotiations, beginning at the November 29--December 3 world trade ministers' meeting in Seattle.

The Other Side

The pharmaceutical industry argues that what Africa needs most is not drugs but medical infrastructure. In fact, infrastructure varies greatly from place to place--and intellectual property restrictions are particularly problematic, because they remove many promising public-health options from consideration.

And the enormously inefficient U.S. medical infrastructureŚ with vast sums spent for gold-plated "marketing," mostly influence buying with physicians, medical journals, influential professionals, and "thought leaders"--is hardly a model for countries which cannot afford suchextravagance.

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Industry argues that without strong patent protection, there will be no incentives to develop new drugs. In fact, industry does much less medical research than generally believed.

But also, when a patient cannot obtain needed drugs at all, no royalty is generated and no research is supported, since no sale takes place. There must be a better way to support medical research than condemning 90% of people who need a drug to death, just to maintain high prices for the other 10%.

On May 6 of the year, Bristol-Myers Squibb Company announced that it had committed $100,000,000 to a five-year program to improve AIDS research and treatment in five African countries. We commended them for initiating this program, when most companies do not care.

But it's also worth noting that even if this program works perfectly, it will deliver treatment to no more than 20,000 people--less than one in a thousand Africans living with HIV. The point is that while charitable projects are vital, charity alone cannot treat a whole continent. We also need rules and arrangements (including trade rules) that everyone can live with.

What Organizers Can Learn from This Issue

Less than a year ago, the issue of pharmaceutical patents and developing countries was nowhere on the radar screen in the U.S.; fewer than a handful of organizers in the whole country were working on it, and almost no one had ever heard about the issue or considered it at all.

There was essentially no coverage in any mainstream, specialized, or alternative media. We expected a slow building of momentum through progressive organizations and churches, until eventually there could be mainstream attention. Instead, the issue has moved so fast into the mainstream that there was little time to even inform the progressive community about it.

What worked was:

aidsinafrica.jpg - 8.65 K (1) The strategy and goal of developing a world-class moral issue--modeled in some ways on the anti-apartheid movement, and on the movement to stop the U.S. from forcing other countries to accept the mass marketing of tobacco. Above all, the moral issue had to be clear and immediately understandable to people.

(2) Technical expertise. Here it was provided mainly by some of the Ralph Nader organizations, especially the Consumer Project on Technology (www.cptech.org).

(3) High-profile protests. AIDS activists who confronted Gore in his campaign brought the issue to national attention.

(4) The unpopularity of the pharmaceutical industry.

(5) Some good luck.

Washington insiders thought this issue had no chance. It has long been fundamental U.S. foreign and economic policy to protect the intellectual property rights of its companies-- with no institutional commitment to avoid killing people in the process. Few thought the public would care much about a complex trade dispute--or about African lives.

Recently when activists went to talk to Congressional aides on Capitol Hill, they found that regardless of ideology, the aides at least knew what this issue was--a striking contrast to most AIDS and other issues for which far more legislative work has been done.

What has been accomplished in the last six months is to put this issue on the table, when it was not on the table before. Thousands of journalists, activists, politicians, and trade or foreign-policy experts in the U.S. and around the world now know the problem exists, and some are researching, writing, or otherwise working with it.

The Future

We believe the main focus should be on the central moral issue, rather than on a specific remedy. At the very least, government policy should not create impossible obstacles to saving lives and improving health care around the world. We are looking for workable ideas from any source, certainly including industry.

For More Information

  • An excellent 10-page background paper on compulsory licensing and parallel importing was published recently by ICASO (the International Council of AIDS Service Organizations). Written by Margaret Duckett in Australia, "this document aims to provide people with sufficient information to participate fully in the debate, and to help people better understand the potential for advocacy work on these matters in their own countries and with their own governments." English, French, and Spanish versions are at: www.icaso.org/compulsory.html

  • A related background paper--and a sign-on letter seeking organizational signatures by November 20 if possible, for delivery at the trade meeting in Seattle--is available from the International Gay and Lesbian Human Rights Commission, www.iglhrc.org

  • For technical background, see the Consumer Project on Technology, www.cptech.org

  • For press citations see the Health GAP Coalition, an organization formed recently to address this issue, at www.healthgap.org

  • AIDS Treatment News has published five major articles (starting with "GATT and the Gap: How to Save Lives" last November). All our back issues are available at http://www.aids.org/atn; see #307, 311, 314, 317, and 322.

    [John S. James has published AIDS TREATMENT NEWS for over 12 years. He can be reached at jjames@aidsnews.org or 415-861-2432.]


    AIDS Treatment News Published twice monthly

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