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Patents on medicine or human lives: time to choose

Act Up-Paris’ release published in "le nouvel Economiste" - n°1647 - 25th to 31st January

publié en ligne : 5 February 2013

From January to October 2012, more than 4 million people have died from AIDS, malaria or tuberculosis, albeit treatments that could have saved them do exist. Medicines and follow-up examinations for the ill remain too expensive to guarantee universal access. At the same time, the American pharmaceutical company Abbott reported a net income of about $5 bn, that is to say 7% more than the previous year. For the French company Sanofi, the income amounts to $6 bn.

It is nothing to say that the economic crisis do not reach the pharmaceutical area. On the contrary, it has been beneficial since pharmaceutical companies use this excuse to dismiss employees on a large scale and to maintain high prices for their products. Although people are asked to tighten their belts, notably concerning health expenditures, it is difficult to understand why governments do not tackle this potential source of savings. As a matter of fact, the prices imposed by pharmaceutical companies are unjustified, wherever they are applied. In countries like France, they overstretch the health care system. But of course, in poor countries, this kind of price policy applied by companies has the deadliest consequences. What can justify that high prices are maintained despite the health emergency, which is not limited to the 3 pandemics above ?

Medications are produced and sold by pharmaceutical laboratories, i.e. private profit- making companies. Thus, medicines are subjected to the trade rules, and especially to the rights known as “intellectual property” rights. It consists of a range of exclusive rights over an immaterial product (here, the chemical process in medicines), officially aimed to compensate for the research and development (R&D) endeavours that permitted to create this medicine. This made-up story has been proven false for a while now. The R&D budgets posted by companies represent only a small part of the turnover (Novartis invested 14% of it in its R&D department in 2012, whereas management and selling expenses represent 24% of the turnover). On the other hand, these companies benefit from the support of governments and public research, without any compensation. Last, although the “intellectual property” rights have been considerably reinforced for the past 4 decades , a loss of impetus in innovation concerning medicine have been noticed.

Even though mendacious, this made-up story translates, in law, into acquiring a patent for a minimum length of time of 20 years over any medicine deemed innovating, during which time only the patent-holder laboratory is authorised to produce and commercialise this medication. Without any competitors, the laboratory can freely set prices. This commercial logic have been internationally consecrated by the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS), ratified as part of the World Trade Organisation (WTO) in 1994.

Warned by AIDS activists on the disastrous consequences of this reasoning concerning the access to treatments in the World, WTO members adopted in 2001 the Declaration on the TRIPS Agreement and Public Health (referred to as the Doha Declaration ) which acknowledges the priority of health issues over the commercial protection of pharmaceutical products.

The activists’ work have paid : exploiting the few flexibilities of the TRIPS and increasing the use of generic medicines against the HIV have, in ten years, allowed to really increase the number of people under treatment : from 5% in 2001 to almost 50% nowadays. But these improvements remain insufficient, and using the TRIPS’ flexibilities leads to strong economic and political pressure. After using one of these flexibilities in 2006 in order for its population to gain access to efavirenz, the government of Thailand was threatened of retaliations by the USA and the European Union. The laboratory which held a patent on the efavirenz, Abbott, “punished” Thailand by not registering several of its new medicines in the country.

To assert exceptions limited to a fundamentally unjust system is no appropriate solution to the health crisis, particularly since the situation have changed a lot since the end of the 90’s. Indeed, until 2005 India had benefited from a delay in the implementation of the TRIPS agreement which allowed the country to develop its generic medication industry and produce less expensive medicines, up to 90% cheaper, to fight AIDS, malaria, etc. It has thus become the first source of pharmaceutical products available in the South (80% of the antiretroviral drugs distributed in Africa come from India), what led the country to be nicknamed “the World’s pharmacy”. But, since 2005, the country had to bring its legislation in line with the TRIPS and to acknowledge the use of patents. This implies that new AIDS medicines, less toxic and more efficient, will not be made generic ; therefore their prices will remain too high, while at the same time the ill from poor countries are growing resistant to HIV treatments from the first generations.

Simultaneously, pharmaceutical companies are putting the Western governments under pressure in order to enforce protection on originator medicines. In the Anti-Counterfeiting Trade Agreement (ACTA) negotiated, among others, by the European Union, generic medicines were assimilated as counterfeiting and firmly punished. Thanks, notably, to the AIDS activists’ mobilisation, the agreement was finally rejected by the European Parliament in July 2012. But the EU, following the United-States, keeps fighting its war against generic medications on another front, using bilateral trade agreements which contain provisions aimed at enforcing even more the protection of patents. The World Health Organisation, UNITAID and the Global Fund to fight AIDS, Tuberculosis and Malaria united with activists to denounce and condemn the consequences of the agreement negotiated with India on the access to treatments.

For its part, the company Novartis tries to limit the production of generic medicines by resorting to a legal action against the Indian law. The Indian Supreme Court will shortly give its decision after a 7-year procedure.

Each day 15 000 people die from AIDS, malaria or tuberculosis. They are the daily casualties of a war led by pharmaceutical companies that only focus on their profits. The ill from the developed countries also pay their tribute to this exorbitant price policy: since June, Greek people suffer from a shortage of medicines because laboratories will not supply the drug-stores which are no more reimbursed by the State. It is a situation we cannot compromise over.

Governments must abolish “intellectual property” wherever it is a cause of death, fight against the corruption by pharmaceutical companies in decision-making bodies, including the media, and ensure universal access to treatments. A health system plagued by patents destroys lives, in the North and in the South either: it is time to change.

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