Patents versus Affordable Medicines at Geneva 2000

By Cecilia Oh

Geneva, July 8, 2000 --One of the key decisions of the UN General Assembly Special Session (UNGASS) on Social Development that ended last Saturday, was that governments may freely exercise the options available to them under international agreements to protect and advance access to life saving and essential medicines.

One would be forgiven for thinking that this is hardly headline-making material. But the negotiations, the trade-offs and the behind-the-scene manoeuvrings that had gone into getting such an agreement does make for some interesting reading. Indeed, the issue of patents and essential medicines had become one of the most talked about and controversial topics among both governments and NGOs at UNGASS.

Was anything achieved? In terms of real progress for addressing the need of developing countries and poor peoples’ access to life-saving drugs, perhaps not much. In terms of bringing to light the efforts of some of the developed countries in pushing the agenda of pharmaceutical corporations, quite a bit.

The high cost of patented medicines, especially for AIDS treatment, has been a matter of great concern to the developing countries, especially African countries because of the high incidence of AIDS in the region.

Prior to the UNGASS in Geneva, discussions had already taken place in the UN in New York, during the preparatory sessions. There, developing countries had proposed that countries should be allowed to make use of the existing
provisions in the TRIPS Agreement, for circumvention of patent rights over pharmaceutical products, so as to enable life-saving medications to be provided at affordable cost in developing countries.

In particular, South Africa had proposed that governments should recognize that “intellectual property rights under the WTO-TRIPS Agreement should not take precedence over the fundamental human right to the highest attainable standard of health care”, nor should it take precedence over “the ethical responsibility to provide life saving medications at affordable cost to developing countries and people living in poverty”.

The US and EU had objected to this proposal. The EU countered the South African proposal with an alternative text, which acknowledged the importance of intellectual property rights, whilst recognising the limited exceptions to normal patent rights that may be used in particular case, such as that of a national emergency.

Both these texts came to Geneva in square brackets, denoting disagreement. In Geneva, the developing countries in the Group of 77, proposed a new and even stronger text, which would exclude patentability of essential and life-saving medicines in order to advance access to such medicines at affordable prices. This language further recognised that intellectual property rights under the TRIPS Agreement should not take precedence over the human right to health care, and the ethical responsibility to provide life-saving medicines at affordable prices.

Again, the developed countries - US, EU, Canada, Japan and Australia - objected to this proposal. In a dialogue session with the NGOs, an EU delegate explained that the EU opposed the G-77 text because the exclusion of patentability would reduce incentives for drug companies to carry out research and development.

Thus in Geneva, the EU proposed an alternative text stating the importance of IPRs in providing incentives for research and development. The EU text, however did point out the inherent flexibility of the TRIPS Agreement, which could be used to improve access to drugs for developing countries.

The G-77 position was similar to the stand taken by several NGOs involved in the health, development and human rights areas. One of the more interesting NGO-organised events during the week in Geneva was a workshop on “Shameful
Profits: AIDS, Drugs and TRIPS”, organised by the Norwegian Forum for Environment and Development.

Health NGO leaders, including Zafrullah Chowdury of Bangladesh and Ellen’t Hoen of Médicins Sans Frontiéres (MSF) expressed outrage on how pharmaceutical companies were making large profits through patents on their products, by
which they secured monopolies, enabling them to charge high prices at the expense of the poor people.

”Medicines cannot be treated as mere commodities, access to medicines is a question of life or death”, asserted Ellen’t Hoen, the Drug Policy Consultant of MSF. She cited several examples of how patenting of drugs has resulted in consumers having to pay exorbitant prices for branded essential medicines, many times more than the cost of generic alternatives.

She also stressed that the proper role of intellectual property protection was to balance the private rights of innovators, against the broader interest of the public.  In a policy paper for MSF, she advocated that the future review of the TRIPS Agreement should include an exception for essential health care products from patenting. “Protecting public health should have primacy over commercial interests”, she added.

It was obvious that the developed country governments did not share the same perspective as the G-77 or the NGOs, during the Geneva negotiations. They fiercely resisted the G-77 proposal to exclude essential medicines from patentability. There were also varied attempts on their part to de-link human rights (or the right to health) from intellectual property rights and the TRIPS Agreement, including through the use of commas and full stops in the text.

The attempts to drastically dilute the G-77 position succeeded. However, the G-77 managed to fight for a compromise text, in which the rights of people to health and the rights of national governments to exercise their options freely within international agreements were affirmed.

It may be argued that the G-77 only managed to include what was already within the rights of its member countries. Nevertheless, the explicit stating of these rights and in such a manner, was seen by many of the delegations as a moral victory.

The final agreed text is in four separate sentences. The first two sentences affirm the human right to the “highest attainable standards of physical and mental health” and “the critical importance of access to essential medicines at affordable prices”.

The third sentence acknowledges the “contribution of intellectual property rights to promote further research, development and distribution of drugs, and that these intellectual property rights should be contribute to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare”. The EU and the US had insisted on the reference to the contribution of intellectual property rights; however, the G-77 managed to balance this with the rest of the sentence with language from Article 7 of the TRIPS Agreement.

The final sentence reaffirms that “countries may freely exercise, consistent with national laws and international agreements acceded to, in an unrestricted manner, the options available to them under international agreements to protect and advance access to life-saving and essential medicines”.

The G-77 saw this as a crucial statement to make because of the negative experiences of countries such as South Africa, which had recently come under intense pressure from the US when they attempted to introduce national laws on medicines that would have given their governments the ability to implement compulsory licensing provisions (which are, in fact, allowed under
TRIPS).

Thus, the references to “freely exercise” and to “an unrestricted manner” were seen by the G-77 as strengthening their right to resist unilateral pressures from the US or any other country, if and when they choose to exercise the right to opt for compulsory licensing and other measures, as allowed in international agreements (such as TRIPS).

Some public groups point to the irony and double standards involved when the US puts pressure on developing countries not to introduce compulsory licensing. “In fact, the United States laws have very good provisions on compulsory licensing, which are used all the time. Why should the developing countries not be able to use similar provisions?”, asked Ellen ‘t Hoen of MSF.

Perhaps, it is true from a legal standpoint that paragraph 80 of the UNGASS text on patents and essential medicines may not have been much of an advance in the realm of international law, for the interests of the consumer or developing countries. However, the process of hard negotiations in the formulation of the paragraph served a useful purpose in raising the awareness of both the governments of developing countries as well as NGOs, on the threat posed by the present intellectual property rights regime, to the attainment of health care.

What can be predicted is an increase in NGO action and campaigns to promote health care above the corporate ownership of patents. As a health activist said in Geneva last week, “ It is no exaggeration to say that hundreds of millions of lives are at stake, given the AIDS epidemic and the resurgence of diseases. It is obscene that corporations can be given patents to make monopoly profits at the expense of these lives. Something has to give. And that something should be the patent regime, and not those hundreds of millions of lives.”

Cecilia Oh is a researcher with Third World Network.