Entire intellectual property system could easily fall
IPN Opinion article
Financial Times (letter to the editor)
Sir, A World Trade Organisation ministerial meeting in Doha established the notion that the poorest countries should, in principle, be able to compulsorily import drugs from generics companies (those copying patented medicines) in countries that did not (albeit legally) respect the drug patents of the western companies. But the isolated, pro-patent US Trade Delegation has in the main refused to budge on breaking strict patent laws.
Dr Amir Attaran, a fellow with the Royal Institute of International Affairs, believes the whole question of patent attenuation is irrelevant since poor countries are unlikely to break patent laws anyway. He says compulsory licensing is so "extraordinarily" rare that it has not been used once in the last decade by any country in respect to a finished medicine. He adds that compulsory licensing is not practical.
Dr Attaran points out that many anti-globalisation activists encourage compulsory licensing in developed country markets (for Canadian or Indian generic drugs to have full access in American markets), not for the benefit of public health in poor countries. However, he asserts that by any objective measure of success - such as the number of generic medicines manufactured under compulsory licences, the number of patients treated using those medicines, or the dollars of pharmaceutical sales lost to compulsory licences - the effort has been fruitless.
The drug industry still pushes a hard line on the issue because it is fixated with the law rather than diplomatic, political and attitudinal realities. Dr Attaran states it is a custom that countries aspiring to the polite society of globalisation never compulsorily license medicines - "the velvet handcuffs of international custom and comity are that strong." Because paragraph 6 is unlikely to change international custom, Dr Attaran concludes that it will not harm the pharmaceuticals industry.
But several nations have recently threatened to use compulsory licensing. Aids activists, working with legal experts, have pushed countries such as Mexico, Korea and Brazil to enact compulsory licensing regulations. They almost succeeded, especially in Mexico, and it's only a matter of time before they succeed somewhere. In other words, once the velvet handcuffs of international custom are undone, they may never be worn again.
In recent months the US widened its negotiating position, allowing patent attenuation for drugs for 22 diseases. But there is little doubt that the US administration and drug companies want drugs for lifestyle complaints and major western diseases left off the table. Attaran says it is much ado about nothing. But the US is right to hold firm because short-term changes to WTO patent laws could spark a decline in drug research.
Unlike many other legal institutions, just a few bad precedents could topple the entire system of intellectual property rules.