[DEBATE] : Re: Intellectual Property Rights report

[Hein Marais]

These two pieces, one from SciDev.net, the other from the Guardian, might of
interest, too.

Hein

Access to drugs: a suitable case for treatment
 
5 April 2006 

Increasing access to affordable drugs in developing countries requires
better government intervention, not less of it. 

It is tempting to dismiss this week's World Health Organization report on
the relationship between intellectual property rights and innovation as
little more than a relatively unexciting survey of a complex and
controversial field (see Patent study urges R&D boost for neglected
diseases).

Certainly there are few radical conclusions or recommendations in the
report, drawn up over two years by a ten-member panel of independent
experts. And the main message - that governments should do more to increase
poor people's access to medicines - is unlikely to make much impact in a
world that has heard many similar calls over recent years from individuals
ranging from presidents to rock stars.

Reading between the lines of the report, however, it is clear that the
absence of concrete proposals for change reflects not so much the panelists'
lack of commitment as their inability to reach a consensus on how to reach
the above goal.

This is implied, for example, by the fact that half of the members - an
unusually high number - felt it necessary to publish short statements,
attached in an annexe, dissociating themselves from some of the report's
conclusions.

Indeed, while the panel's chair has described the report as a "road map" of
steps needed to ensure effective innovation in drug development and
delivery, in many ways it also resembles the sketch of a battleground. For
it clearly identifies the main features of the broad terrain across which
two groups are currently skirmishing over how to meet the health needs of
the world's poor.

On one side are those who believe the solution lies in the hands of
pharmaceutical companies, open markets, and governments that believe these
should be allowed to operate with minimal interference. On the other are
those whose main concern is that the current lack of available and
accessible medicines for the poor is clear evidence of market failure and
who believe governments have a responsibility to intervene.

Contours of a contested terrain

Patent policy is one part of this contested terrain. While not challenging
the basic premise on which the patent system is built - namely that the
ability to benefit from patent protection is essential for successful
innovation - the report points out various ways of modifying its
implementation that could, it suggests, produce significant benefits.

For example, it says those responsible for implementing patent policies
should take a firmer stance on 'evergreening'. This is the process by which
companies may seek to extend the life of patent protection on a key product
by introducing (and then seeking protection on) relatively minor
modifications.

The case for change in this area is strong. Nevertheless, one of the panel
members, the former head of Britain's pharmaceuticals trade association,
dissociates himself from this conclusion, on the grounds that "incremental
innovation is the lifeblood of medical progress and requires strong
intellectual property rights to stimulate further innovation". 

Not all of the dissent with the roadmap comes from the same side of the
battleground. The report contains much that the pharmaceutical industry
would agree with, such as the fact that delivering effective and affordable
medicines depends on many factors, including the general state of a
country's healthcare system.

Such a statement, however, came in for criticism from two panel members who
argue that, in their eyes, focusing on delivery systems - including market
effectiveness - deflects attention from the key issues concerning access to
and control over scientific knowledge.

Conflicts are entirely understandable. After all, the pharmaceutical
industry exists primarily to meet the financial interests of its
shareholders - not the medical needs of developing countries. The relative
absence of effective drugs and vaccines for neglected diseases such as
malaria and sleeping sickness is not due to a lack of interest (or even
goodwill). Rather, the poor of developing countries simply do not constitute
lucrative markets.

Much has been done in recent years to bridge the gap between the motivations
of the private and public sectors. As the World Health Organization (WHO)
panel points out, major public-private partnerships have been created to
address key diseases. Elsewhere, governments such as Britain's are pursuing
the potential for advance purchase agreements, creating 'virtual markets'
for products before they are developed in the hope of encouraging the
industry to invest in the necessary research and development.

Addressing market failure

Such initiatives are to be applauded. Drug companies are not charities, and
can be neither expected nor forced to operate as such. The challenge for
governments is to find ways of harnessing the potential that these companies
offer - particularly through their research and development expertise - to
efforts to meet the health needs of the world's poor.

The companies also have a point when they say that governments can be part
of the problem. There is no way that placing heavy taxes on the sale of
drugs, for example, can improve their accessibility. Similarly, investment
in both the physical and intellectual infrastructure that effective health
delivery systems need is a public responsibility that should not be left to
the private sector. 

But the solution to this lies in better government, not less of it.
Unfortunately, the pharmaceutical industry uses much of its political power
to push a different agenda, namely that governments are part of the problem,
and cannot be expected to be part of the solution.

If there is a bottom line to the WHO panel's report, which will be discussed
at the World Health Assembly next month, it is the message that governments
must indeed be part of the solution. The report provides a detailed shopping
list of ways that well-targeted actions could improve the situation. It is
in this sense that the chair of the WHO panel described the report as a
"road map" for the future.

Almost all proposed actions, from increased investment in biomedical
research to agreement on a global action plan, require action by governments
in both developed and developing worlds.

Where the pharmaceutical industry agrees to support progress along the way,
health care in developing countries will undoubtedly benefit. But if, by
operating in the interests of its shareholders in the developed world, the
industry undermines such progress, whether by transparent or covert means,
overall achievement will inevitably be limited.

David Dickson, SciDev.Net Director


WHO plea to drugs companies

Sarah Boseley
Tuesday April 4, 2006


Guardian
Drug companies should not take out patents on their new medicines or enforce
patents in poor countries if that is likely to prevent patients from getting
them, an influential commission set up by the World Health Organisation said
yesterday.

The Commission on Intellectual Property Rights, Innovation and Public Health
spent two years drawing up proposals on the contentious and hard-fought
issues of access to medicines in poor countries. Controversy over deaths
from HIV/Aids, which has become a treatable disease in the rich world, was
behind the setting up of the commission under the former Swiss president
Ruth Dreifuss.

The pharmaceutical industry has long argued that patents, granting a 20-year
exclusive right to market a drug, are not the problem. It says that the
absence of clinics, hospitals and medical staff are the real reason why
people do not get treated. But the commission disagrees, saying generic
companies should be allowed to make cheap copies in poor countries.

"In low-income countries they should avoid filing patents or enforcing them
in ways that might inhibit access," the commission says. It encourages
companies to license others to make their drugs.

Ms Dreifuss said she recognised the profit orientation of the industry, "but
we think they can do more". More transparency was needed, so that poor
countries knew which medicines were under patent, and pricing policies were
clear. Governments should also do more, the report says; in particular, rich
countries should devote an increasing part of their healthcare research and
development spending on the needs of poor countries.



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