What Patent Problem?
By Roger Bate
May 17, 2004
As the world’s health experts gather in Geneva today for the World Health Assembly, it is time to assess the main AIDS debate that has raged for all of this decade. Without clarity on the problems of the spread of HIV AIDS there can be no hope of a solution.
Amir Attaran, a fellow with the Royal Institute of International Affairs (and a board member of my own organization, Africa Fighting Malaria), has for the past four years done his best to provide light to an otherwise heated debate. Specifically, he has exposed the various fallacies of anti-globalization public-health activists who attempt to undermine the patent system for the sake of manufacturing and exporting generic drugs. He has also done his best to expose the hyper-sensitivities of the pharmaceutical industry. His recent analysis of drug-patent exploitation in developing countries, published in the May-June issue of Health Affairs, does both. In it Attaran points out that patents have rarely been a problem for drug consumers in poor nations; in fact, only 1.4 percent of the WHO essential-drug list is on patent in the poorest 65 countries. Because of this fact, Attaran concludes that “poverty, not patents, imposes the greater limitation on access.” At the same time, he also points out that the patent system is not as likely to be undermined as pharmaceutical companies might believe or imply.
Dr. Attaran’s argument should squash once and for all demands for compulsory licensing of patented medicines in most poor countries. (Compulsory licensing is a legal procedure that allows the overriding of patent rights so that generic medicines can be produced and sold in countries that lack the capacity to manufacture them themselves.) His analysis should also make largely irrelevant the Doha declaration, made at the World Trade Organisation Ministerial meeting in November 2001, which established the notion that the poorest countries should, in principle, be able to import drugs from generics companies in countries that do not (albeit legally) respect the drug patents of Western companies.
The key difficulty in passing this declaration was agreeing on what should constitute the poorest countries and which diseases should be covered. There was widespread disagreement as to whether ‘poor’ should include just the poorest countries (known collectively in U.N.-speak as less developed), or should be expanded to include all countries except the non-OECD members. The U.S. and most European nations wanted just the poorest nations included. But the U.S. was isolated on the disease scope. Most countries did not want the list of diseases covered to be restricted to the ‘Global Fund’ diseases of AIDS, tuberculosis, and malaria; the U.S. alone pushed hard to confine the list to this group.
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