Drug patents: monopoly on life or death

Many African countries, led by South Africa, are starting to fight the pressure of American pharmaceutical industries by modifying intellectual property and patent laws to guarantee access to drugs for everyone that needs them. This has included limiting the registration of new patents that do not represent a new concept to fence off the pharmaceutical company monopoly where slightly modified formulations were registered to avoid exploitation licences running out in an attempt to prevent generic (identical yet cheaper) medication from entering the market.

The pharmaceutical industry has always argued that high market prices are due to the high costs of researching and developing new drugs. However, a quick glance at the balance is enough to see that drug companies always come out on top without any concern for fair distribution of these researchs' benefits. It has been proven that most of the investment made to develop new drugs, 84% no less, comes from public funding, whilst only 12% corresponds to investment actually made by the pharmaceutical industries. In addition, the extremely high investment in marketing and the like made by these industries makes the figures intended for research and development into new drugs even more insignificant, only representing 1.3% of the total profit. It is thought that this industry makes an annual profit of billions of dollars. Meanwhile, millions of people are dying for lack of access to "branded" medicine for which they hold the treatment monopoly.

In Brazil, AIDS has been a serious health problem since the 90s and so Brazilian authorities drew up a plan, determined to take emergency measures. One of the key points in their fight was to offer free access to anti-retroviral drugs whose extremely high cost was impossible for any poor country to take on. Aware of their lack of knowledge on invention patents, Lula's government in Brazil analysed this issue and took a surprising decision in 2007: they drew up a legal decree to only award the concession of compulsory licences for selling anti-retroviral drugs used in treating AIDS and HIV. These licences restricted the exclusivity of exploiting these drugs meaning that it made the industry surrender its exploitation rights to third parties who wished to compete, as long as it was for non commercial public use, for a limited period of 5 years. These licences form part of a strategy allowing governments to intervene in the drug market for reasons of public health, as a result of the Doha declaration, as we will see.

There are basically two arguments that justify why different countries are choosing to change their intellectual property laws. One of the arguments consists of complying with Distribution Justice for drugs. According to article 10 of the Ethical International Directives for Biomedical Research Involving Human Subjects report drawn up by the World Health Organisation (WHO), before starting scientific research, its sponsors should evaluate and make sure that the research meets a population's needs and that the results will be within the population's reach. Another form of arguing consists of applying the World Trade Organisation ADPIC Resolution that since 2001 has allowed countries to be able to defend its inhabitants' right to health, independently of commercial agreements - Doha Declaration. This resolution seeks national production of generic drugs or importing medication from whoever produces it at the cheapest price.

In this way, countries such as Brazil and India have managed to get a balance between promoting public health and access to drugs, by modulating intellectual property rights but without putting at risk the pharmaceutical industries profits, as a guarantee in any case that they can recover their investments in truly innovative and universal developments.

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