Belinda Beresford
Aids activists ratcheted up the pressure on the pharmaceutical industry yet again this week by publicly breaking patents on medicines and daring the drug companies to sue.
The Treatment Action Campaign (TAC), Mdcins Sans Frontires (MSF), Oxfam and the Congress of South African Trade Unions this week brought non-brand name antiretroviral medicines into South Africa and have announced that they intend to continue this programme of patent disobedience.
The drug companies now face a very public dilemma. They either ignore the action and risk setting a precedent of failing to protect their patents or they sue. But legal action will spotlight the international agreements that allow countries to lift patents in emergencies. Late last year the World Trade Organisation explicitly stated that health disasters allowed the easing of intellectual property rights reaffirming rights that developing countries say have been difficult to exercise because of pressure from the developed world, especially the United States.
The US was widely accused of double standards on this issue in the wake of the anthrax scare late last year, when the American government publicly used the threat of generic drugs to get cheap antibiotics. That decision could be used as a precedent in a South African court case. Many developing countries view the debate over patent issues as being more about a form of economic protectionism for industrialised countries than the principles of intellectural property rights.
A court case would almost certainly mean another public relations disaster for the pharmaceutical companies similar to the one they faced last year when the Pharmaceutical Manufacturers Association (PMA)went to court against the South African government. TAC and other NGOs and activist groups have proven themselves extremely adept at mobilising international opinion on the need to get cheap drugs to save the millions sickening from HIV/Aids the experience of being painted as the sort of industry that puts profits over the health and lives of millions of impoverished people was a major reason why the PMA backed out of that court case.
Also bracing itself for further attacks in the war for public opinion last year was the South African government, which was humiliated by a court decision that it had breached the Constitution by failing to provide medical care that reduces the chances of children catching HIV from their mothers.
This week’s public patent busting is also part of a strategy to focus attention on why the state has not used the legal powers it already has to get access to cheaper medicines. The Patents Act allows for the issue of compulsory licenses where patent holders are forced to give up some of their intellectual property rights in certain cases such as national emergencies. The groups involved in the patent-busting scheme want the government to issue non-exclusive compulsory licenses that would allow a large number of manufacturers to make generic drugs. They argue that such competition would force the prices down.
Under the pressure of the worldwide campaign for cheaper medicines in developing countries pharmaceutical manufacturers have drastically dropped the price of many drugs and in some cases have offered free donations.
Many of these offers have been criticised because of the conditions attached to them. MSF head Eric Goumeas, for example, points out that some are only available to the public sector. NGOs and private patients can’t benefit and the government won’t take them up because it refuses to provide anti-retroviral therapy.
The TAC claims that giving a triple therapy of nevirapine and a combination pill of AZT and 3TC would cost R37,44 per day if the patented drug were used. The bioequivalent drugs brought in this week had been bought from a Brazilian state manufacturer for half that amount. MSF says that this will allow it to double the number of people in the impoverished township to whom it is able to give anti-retroviral therapy.
The Nobel prize-winning humanitarian organisation also announced that, contrary to some opinions, their research study into the possibility of giving the potent anti-retroviral drugs in resource-poor environments seems to indicate that poor black people can stick to a drug regime. Goumeas presented preliminary results on some of the 85 people who have been receiving such medicines. He said that when the study began, the median CD4 count a measure of the strength of the immune system for the people in their test programme was just 48; in a healthy person, it would be between 800 and 1 200. Statistically this meant those patients were terminally ill, and facing a 50% chance of dying within a year. However, some months later, in the 26 patients with the most comprehensive results, anti-retroviral therapy had boosted their CD4 count to an average of 128. In almost all these patients, standard tests were unable to detect the virus in their blood.