September 14, 2016
Increasing access to healthcare around the globe is the serious issue the UN Secretary General’s High Level Panel on Access to Medicines attempts to address in a recently released report. Regrettably the Panel’s focus on intellectual property rights (IPR) will do little to improve healthcare and may indeed harm the future development of much needed medicines and medical technologies.
The UN report acknowledges that there are many reasons why people lack access to healthcare, including regulatory barriers and a lack of sufficiently qualified and skilled healthcare workers. Perhaps the Panel focuses on IPR, because solutions to the many barriers to healthcare require a long-term focus on infrastructure and capacity, which, ultimately, are an outcome of economic growth, rising incomes, and wealth creation.
Delinking IPR from development cost is economically impractical
Should countries follow the Panel’s advice and, among other things, negotiate an R&D Convention that “delinks the costs of research and development from end prices”, the process of drug development will be set back, not advanced. Although the WTO TRIPS agreement, which covers IPR, has been in effect for several years, few countries have used the flexibilities contained within the agreement. The Panel’s report implies that this is due to “explicit or implicit threats, tactics, or strategies that undermine the right of WTO Members to use TRIPS flexibilities”.
It is also possible, however, that developing countries are not using these TRIPS flexibilities because they are unnecessary, and because the real barriers to accessing healthcare are more fundamental. A system of cooperation and trade that respects the right of IPR holders is likely to be a far more productive and useful strategy to improve healthcare than one dependent on confrontation and a system where patents are circumvented through the use of compulsory licenses.
Most medicines on the WHO essential medicines list (95%) are off-patent
The UN Panel appears to believe there is no problem so great that cannot be solved by the creation of a high level committee or working group. The Panel overlooks the fact that 95% of the World Health Organization’s essential medicines list — the medicines that experts consider most important to improving global health for the world’s poorest — are already off-patent. Most of the remaining 5% of medicines with patent protection are for HIV/AIDS treatment, and often the patent owners either do not register or do not enforce their patents in the poorest countries.
Stock-outs in South Africa have nothing to do with IPR, WTO or TRIPS
South Africa, which has a more advanced public health system than many developing countries, has experienced some well-documented stock-outs of essential medicines in public clinics. These stock-outs have nothing whatsoever to do with IPR, the WTO, or the TRIPS agreement, but are due instead to numerous failures that exist throughout the complex continuum of healthcare.
The UN Panel's recommendations are neither necessary nor appropriate
The Panel’s recommendations to tear down the protections that have delivered life-saving drugs to millions of people are neither necessary nor appropriate. The protection and promotion of property rights lie at the heart of free market economies. If developing countries are truly concerned about increasing access to medicines, they will tear down government created barriers that we know hamper access to cheap off-patent medications. More and more drug discovery and development is being done in developing countries, and for this reason the rights of these innovators must be recognised and protected.
Comments on FMF statement on the UN High Level Panel on Innovation and Access to Health Technologies