GENEVA -- Just when you may have thought that the global debate on the role that drug patents play in access to medicines had died down, it rose again in prominence at the 58th World Health Assembly (WHA) meeting in Geneva. The latest discussions, as with previous ones, unfortunately have less to do with improving healthcare than with politics and (in this case) power, and are unlikely to bring any improvements in healthcare. The danger is that if taken seriously, these proposals could do actual harm.
The reason that the discussions on drug patents and access to medicines should have died down is because the World Trade Organisation reached an agreement that gives flexibilities to countries to override patent rights in the face of a public health emergency. In addition, it allows poor countries without any capacity to produce generic medicines to import those medicines from other countries.
Another reason that the debate should have died down is that the producers of medicines have cut prices, voluntarily given away licences to generic drug companies to produce their medicines and have also given medicines away for free.
Despite this, at the WHA, the left leaning civil society organisation, Consumers International proposed the creation of the Essential Patent Pool for AIDS (EPPA). If created, this scheme would first seek voluntary licences for AIDS medicines and if they fail in this, which is likely, they would then seek "non-exclusive open compulsory licences" for the drugs. This would allow any generic company anywhere to produce these medicines in return for paying a royalty to the patent holder.
The goal of the EPPA is to "provide anti-retroviral medicines, medical devices and testing regimes of acceptable quality and sustainable supply to countries and organisations working with the Global Fund, WHO, UNAIDS and other Partners."
The scheme is really designed to make the process of issuing compulsory licences easier and to reduce the transaction costs of importing generic versions of patented medicines. But one wonders why a group such as Consumers International is leading this campaign and not the Ministries of Health in poor countries that surely should be charged with the job of improving access to medicines for HIV/AIDS. One also has to question why only HIV/AIDS has been targeted by Consumers International when people in poor countries die of a range of different diseases and conditions.
To answer the second question first, the obvious reason for not campaigning on other diseases is that there are few patents on the medicines to treat most diseases. In fact of the World Health Organization's list of essential medicines, less than 2% are actually patented. Access to these medicines, however, remains miserably low, even in countries that have the capacity to produce generic medicines. In India for example, the UN estimates that only 35% of people have access to essential medicines, despite the reported 22,000 generic drug companies pumping out cheap medicines and, until recently, requiring no product patents on medicines. So widening the EPPA initiative to other diseases would probably undermine their notion that patents are a significant barrier to drug access.
There may be several answers to the first question. Perhaps the reason that poor country governments haven't championed the EPPA or something like it is because they know that, in many cases, in their countries AIDS drugs are not patented in the first place. Secondly they may well know that the price of medicines and the presence or lack of drug patents actually plays a small role in denying drug access. Instead the lack of healthcare infrastructure, grinding poverty and the frequent and often tragic stigmatisation of people living with HIV/AIDS means that people don't seek treatment and if they do can rarely access it.
It is more likely that Consumers International, and the other leftist groups associated with it, simply want to have greater power over intellectual property rights. The EPPA would be governed by a Board of Directors made up of representatives of national governments and public health groups. Given the nature of the EPPA, one can hardly imagine that the government representatives would come from countries that have innovative drugs industries.
Perhaps there will be some poor country governments that will eagerly become board members of the EPPA. Some countries have preferred to focus on patents as a barrier to access than their own shortcomings in providing healthcare. The EPPA could provide a welcome way of continuing the battle against drug patents while avoiding the difficult and painful task of improving healthcare infrastructure and challenging AIDS stigma. Many African governments have stalled trade liberalisation at the WTO with their insistence on weakening intellectual property rules, even when they are not a real barrier to access.
The calculated move by Consumers International is similar to one made by the environmentalist group, WWF. This group has campaigned to get its Forest Stewardship Council to authorise the trade in wood products, undermining the WTO and sovereign governments.
The danger for the world's poor and those in need of medicines now and in the future is that there is no room in the EPPA for the drug innovators. If the EPPA was genuinely concerned with improving healthcare, one would think that it would try to improve incentives to create the next generation of AIDS medicines that will be needed when drug resistance to the current generation increases.
The EPPA should be rejected by the WHO and its members not only because there can be little benefit in granting enormous powers over intellectual property rights to unelected NGOs, but because of the damage that it will do to ongoing innovation. The debate over drug patents must end and governments, UN organisations and NGOs have to turn their attention to the practical issues of scaling up AIDS treatment and ensuring decent, quality healthcare. Anything less betrays the world's sick and dying.
Richard Tren is a director of the health advocacy group Africa Fighting Malaria.
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