World AIDS day- Compulsory licensing and HIV, a perspective

Author : Ashok Murthy
Country : India
Age : 18 years

The first of december symbolises the fight against one of the most symbolic threats to human society. In a new study, the number of HIV+ youth has increased considerably in the United States of America and also in Europe. At the centre of the fight against HIV AIDS lies the fundamental hurdle of patent protected medicines needed for Anti retrovial treatment required to help HIV affected patients. This issue is discussed summarily as under.

1.Patents
To put it in simple words, a patent is a contract between the government and the inventor of a new medicine and to benefit our case, we shall assume it to be a pharmaceutical company. The terms and conditions of the contract are quite simple. The pharmaceutical company comes up with an innovative new drug and reveals the background and other details of this new drug to the government and lists out all the innovative characteristics of the drug. The government analyses the description given by the company and conducts investigation on its own. Finally the government awards a monoply to the inventor (company) over all the new innovative aspects of the drug. Except that particular company, it would be illegal for other companies to manufacture or sell this particular drug without a license from the monoply holder or the patent holder.

This may at the outset seem ridiculously unreasonable. But at the end of the day pharmaceutical companies will not invest into R&D to come up with new drugs unless they have an incentive to do so. The incentive is the patent protection and the accompanying monoply. With the signing of the Trade related aspects of intellectual property agreement (TRIPS for short), practically every nation's patent system essentially runs on the same model.

The Issue
Monoply means the drugs are very highly priced. At the same time with increasing number of HIV patients, these patented medicines are needed and are needed cheap. So the government excercises an option under the TRIPS called compulsory licensing. In other words it orders the patent holder (the pharmaceutical company) to compulsoraily allow other companies to manufacture and sell the generic versions of the drug to reduce prices and ensure that everyone has access to the drug at cheap prices.

Thailand and Indonesia have both excercised the option of compulsory licensing lately and South Africa has done it too. Although this is a good option, there is one very serious potential consequence from such actions. The pharmaceutical companies undertake efforts to come out with the new drug only because they can enjoy the monoply.

If it will become certain that these drugs will have to be forcefully licensed out, they may not reveal the details of the drug to the government at all. Instead they may prefer to maintain it as a trade secret which would virtually wipe out any chances of compulsory licensing and easy access to healthcare. Alternatively the company may not bother coming up with new and innovative drugs at all.

The need of the hour is to review the entire concept of patent laws and other Intellectual Property Laws. The present IPR laws take their basis from principles and theories that date back to as early as the 15th and the 16th century. Times have changed and it is important that the law changes too. The concept of awarding monoply as an incentive for inventors to disclose their invention is an age old practise that does not quite fit modern day needs especially in the context of drugs required for Anti Retrovial treatment.

Conclusion
On this world AIDS day, while fighting discrimination against HIV patients should indeed be a top priority, considerable discussion, debate and thoughts must be given to the economics involved behind HIV AIDS related drugs to ensure that both the pharmaceutical companies as well as the HIV affected people are benefitted.