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The pharmaceutical industry took a licking at a World Trade Organization (WTO) meeting held last month in Doha, Qatar. AIDS activists joined with a 60-nation bloc of African nations to force passage of a resolution saying poor countries may break patents to make generic copies of expensive drugs if public health demands it.
The resolution lacks the force of law, but still constitutes a strong political statement that will likely affect future disputes over intellectual property rights, analysts say. The pharmaceutical industry has long argued that letting poor countries break patents on drugs will undercut industry incentives to develop new drugs — and worse, perhaps, will lead to leakage of cheap generics into rich countries.
It didn’t help pharmaceutical companies’ arguments that Tommy Thompson, secretary of the U.S. Department of Health and Human Services, had threatened in the midst of an anthrax scare to break the patent on ciprofloxacin to bring down prices on the drug. When Thompson subsequently denied he’d made the threat, it only made matters worse, says Jamie Love, director of the Washington, DC-based Consumer Project on Technology. "Now it’s as if we’re saying that Americans have to risk bioterrorism to make sure poor Africans don’t get cheap AIDS drugs," Love says. "That makes absolutely no sense."
In fact, patents are broken all the time by rich countries without notable ill effects on the market economy, says Love. "Issuing compulsory licenses is mostly a Northern Hemisphere tradition," he says. This past September, for example, the U.S. issued 178 compulsory licenses on software patents. In July, the European Union ordered a compulsory license on a German database containing pharmaceutical prices. At present, the U.S. is contemplating issuing a compulsory license for a patent on clean gasoline, he adds.
"We’ve begun to look at this patent issue through the narrow lens of AIDS drugs, and that’s a mistake," Love continues. "The point isn’t to make patent law higher than God so patents can never be challenged no matter what the circumstances. The point is to make sure that at the end of the day, [industry] has sufficient economic incentives to continue to do research and development."
The declaration affirms that poor countries have the right to make generic copies of expensive, life-saving drugs, but defers to committee a second issue that activists had also hoped to get settled — namely, whether countries that make generics have the right to export them. From the start, the issue of patent rights dominated the agenda at the WTO meeting. There was little in the way of protest from WTO critics.