US intellectual property policy and access to medicines in the developing world: A rebuttal to Progressive Economy’s “Trade Fact of the Week”December 12th, 2012 | by Guest Blogger
Rohit Malpani is a campaigns advisor at Oxfam and leads the organization’s access to medicines campaign. Oxfam’s response to Progressive Economy’s “Trade Fact of the Week” 11/28/12 is cross posted from the Progressive Economy blog.
Oxfam disagrees with the analysis set out in your November 28 article about patent protection for medicines. The article incorrectly explains the TRIPS Agreement, and we do not believe there was ever a global consensus in support of the intellectual property (IP) approach promoted by USTR, as implied in your article.
The TRIPS Agreement sets out minimum standards for IP protection, and explicitly includes a series of exceptions and limitations to IP rights that may be used by governments in order to achieve public policy objectives, including improvement of health outcomes. We have long been puzzled by efforts to portray compulsory licensing as a legal tool that may only be used during health “crises” or “emergencies”. Put simply, this interpretation is unsupported by the text of the Agreement itself. Similarly, the Doha Declaration confirms the right of countries to use all IP flexibilities in TRIPS “especially”—not “only”—in relation to health emergencies and pandemics.
We question the “policy calm” that you state has existed for 10 years in relation to patented medicines. In fact, that “policy calm” has never existed. Instead, there have been on-going tensions due to the endless efforts of the USTR, under pressure by the multinational pharmaceutical industry, to renegotiate the terms and conditions of the TRIPS Agreement through other means, and especially to strip away the public health limitations and exceptions that were included in the TRIPS Agreement in 1994. Developing countries are finding increasingly that they must endure against these tensions and challenge the pressure because many patients in their countries cannot obtain the medicines they need – especially newer treatments that are still under patent protection, which tend to be out of reach. Certainly governments in poor countries should allocate more money to health care, but the exorbitant prices of many patented medicines, an increasingly familiar problem in the United States, are an absolute barrier to health care coverage in resource-deficient countries.
Together with other humanitarian groups, we have documented a persistent, severe lack of access to new treatments and quality health care across developing countries, with the lowest income groups most affected. Upgrading health infrastructure is a crucial part of the solution, as is use by governments of all the policy options available to them, including IP flexibilities, to promote the availability of quality, low-cost versions of new treatments for their populations.
Medicines, including but not only “essential medicines” as identified by the WHO, are an important component of healthcare. Depending on their affliction, patients need access to quality, effective treatments regardless of whether these are on the WHO essential medicines list (EML). Moreover, medicines are selected for inclusion in the EML based on a range of factors, including affordability; because patent-protected treatments are more expensive, they are generally not included in the list. This is a critical flaw in the papers cited in your analysis, which found—unsurprisingly—that many medicines on the EML are off-patent.
Health care also does not only refer to AIDS, TB and malaria. To say that India has a “relatively small patient population” with cancer and other non-communicable diseases is wrong. Today, the World Health Organization notes that 80 percent of all non-communicable diseases (cancer, heart disease, diabetes) are in low-income countries, especially as life-styles and eating habits undergo a dramatic shift. By some projections, there are up to 2.5 million cases of cancer in India today. Likewise, by 2025, India will have over 75 million cases of diabetes. These are not problems which can be addressed through charity and insurance. They require serious, Marshall-Plan like investments by governments to both prevent development of these diseases and, inevitably, to provide treatment to ensure that their own citizens can lead healthy lives.
Improving health outcomes in the developing world will require substantial investments in health infrastructure, services, and medicines. At the same time, we urge governments to use policy tools available to them to promote availability of quality, effective treatments at the lowest possible cost.