A second look

AS A SPECIAL Session of the United Nations General Assembly meets to discuss how to combat the global spread of the Acquired Immune Deficiency Syndrome (AIDS), an important process has begun in the World Trade Organisation whose outcome will have a bearing on how far developing countries can go in providing care for those already afflicted by the Human Immunodeficiency Virus (HIV). Last week, members of the WTO had their first meeting ever about the impact that the current rules on patents have on public health. Of course, drug patents affect the cost of treatment in a number of diseases and not just HIV/AIDS. But it is the extremely high cost of medication with patented drugs in HIV/AIDS care that has brought this issue to the surface again within just a few years of the signing of the agreement on Trade-Related aspects of Intellectual Property Rights (TRIPS).

What is on the agenda at this point is not a modification of TRIPS - though a number of organisations, economists and even Governments have argued in favour of such an eventuality - but explicit clarifications on how much flexibility the WTO agreement provides to Governments to meet public health objectives by over- riding the rights of patent holders. TRIPS makes explicit provision for the grant of compulsory licences to third parties and less explicitly for parallel imports. Both are useful instruments that have been used outside TRIPS but mainly in the developed countries to check anti-competitive behaviour by patent-holders. But because the TRIPS agreement is not exhaustive in its listing of the grounds on which compulsory licences can be issued and because of the ambivalence on parallel imports, the flexibility of TRIPS remains on paper. Over the past year, global drug companies have shown that they are less than open about Governments exercising their options on parallel imports. In a high-profile case in South Africa, more than three dozen companies filed a petition against new legislation that would have allowed the Government to import drugs - patented and non- patented - at the lowest price from anywhere in the world. The suit was eventually withdrawn, but only because a sustained campaign by global public health groups brought the companies more bad publicity than they could bear. In another case that is now before the WTO's dispute settlement process, the U.S. has contested Brazilian legislation that would allow parallel imports and use of compulsory licences in case the patent holder does not ``work'' the patent (i.e., produce the product) locally.

There is an expectation among a number of developing countries - including India - that the ongoing discussions will lead up to the issue of a statement at a political level at the WTO's ministerial meeting in November about the priority of public health over intellectual property rights. That is a negotiating battle that is yet to be fought, for, while there is now much greater public concern world-wide about the cost of patented health care, a number of Governments - especially the U.S. and Switzerland - remain insistent about the paramount importance of intellectual property rights. The U.S. has expressed its willingness to be flexible when it comes to HIV/AIDS care and it has pointed to the WTO provisions on the use of compulsory licences when there is ``a national emergency'' like the current incidence of AIDS in some countries. But the issue now goes much further than HIV/AIDS care. It is also about the future cost of health care in a variety of diseases and illnesses such as tuberculosis and malaria. Public and private health care will become more expensive if Government policy is straitjacketed by the provisions of TRIPS as it is now written.

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