Drugs, Patents, and U.S. Policy
Thanks to new drug therapies, many people with HIV/AIDS in the United States are now able to live relatively healthy lives. "Triple drug" therapies, or "drug cocktails" allow HIV-positive people to reduce their HIV blood load in some cases to undetectable levels. In the Third World, however, where HIV/AIDS is at epidemic levels and spreading rapidly, these therapies are unavailable to most HIV-positive people.
The drug therapies are unavailable for a simple reason: they are unaffordable. And they are unaffordable, to a significant extent, not because the cost of manufacture is so high, but because patent- or license-holding drug companies choose to set outlandishly high prices, irrespective of the consequences in human suffering. Patent rights and other exclusive controls are not etched on holy stone tablets, however. For countries that are members of the World Trade Organization (WTO), minimum standards are imposed by treaty. But even though the WTO intellectual property agreement is heavily tilted toward industry (indeed, it was drafted in considerable part by U.S. pharmaceutical and software companies), it still affords countries some latitude to bring down drug prices. One of the most important WTO-legal means is compulsory licensing.
Compulsory licensing laws enable governments to instruct patent holders to license the right to produce a patented good to competitor manufacturers for a reasonable royalty -- this introduces competition and reduces prices. Compulsory licensing is explicitly permitted in the WTO intellectual property agreement. The United States government regularly uses compulsory licensing in the area of antitrust enforcement and in many other contexts.
But the Clinton administration does not want other countries to follow the U.S. example.
Dancing to a tune called by the Pharmaceutical Researchers and Manufacturers Association (PhRMA) and the rest of the industry, the United States has threatened to impose sanctions, or has actually imposed trade sanctions, on South Africa, Thailand, India, Argentina, Brazil and others in response to their intellectual property policies for drugs.
These threats or sanctions come despite country compliance with their obligations under the WTO, as Lois Boland of the U.S. Patent and Trademark Office acknowledged in a presentation at a conference on compulsory licensing held in Geneva last month.
In Thailand, U.S. pressure recently led the Thai government to restrict dramatically the scope of compulsory licensing.
As a result, thousands and thousands of the approximately one million Thais with HIV/AIDS are likely to suffer needlessly. According to representatives of Medicins San Frontieres (MSF, Doctors Without Borders), the price of triple drug therapy in Thailand is $15 to $23 a day. The daily minimum wage is less than $5 a day.
Compulsory licensing of HIV/AIDS drugs could make therapy much more affordable. Consider the case of Fluconazole, a drug used to treat cryptococcal meningitis, a fungal infection of the brain which affects nearly one in five of Thailand's HIV-positive population. According to MSF, in July 1998, when Pfizer held exclusive rights to sell Fluconazole in Thailand, the treatment cost was $14 a day. With Pfizer's period of exclusive control now over, two Thai drug companies are also making the drug, and the price of treatment has dropped to $2 a day.
Were Thailand able to maintain and use its compulsory licensing law, it would be able to similarly drive down the price of the anti-retrovirals used in the HIV/AIDS drug cocktails, as well as the price of drugs used to treat opportunistic infections associated with AIDS or other diseases. Compulsory licensing is no elixir for the problem for high-priced drugs. Even "reasonably" priced drugs will be out of reach for much of the HIV-infected population of Africa, for example. Nonetheless, it is a policy tool that could vastly enhance developing country access to HIV/AIDS and other essential medicines. But it is a tool the United States government is intent on denying developing countries. "Patents are not a cause of [drug] access problems," rationalized Boland in her remarkably callous and duplicitous comments.
Now, however, there may be hope that the Clinton administration will be reined in, and developing countries will gain freedom to pursue public health policies even where they conflict with U.S. corporate interests.
Representative Jesse Jackson, Jr.'s "HOPE for Africa" bill contains a provision that would prevent the use of U.S. government money to pressure African countries to adopt intellectual property rules more strict than those required by the WTO. And legislation that would apply this ban to all developing countries is expected to be introduced soon. Meanwhile, ACT UP and other members of the U.S. HIV/AIDS activist community are quickly becoming engaged with the issue -- ensuring that, finally, the Clinton administration will be hearing more than just the drug industry's point of view on the matter.
Russell Mokhiber is editor of the Washington, D.C.-based Corporate Crime Reporter. Robert Weissman is editor of the Washington, D.C.-based Multinational Monitor.
They are co-authors of Corporate Predators, published by Common Courage Press. For more information on Corporate Predators, see <www.corporatepredators.org>.