As the worldwide AIDS/HIV crisis worsens and the limited availability of medical treatment in developing countries is recognized, the relationship between pharmaceutical patents and access to AIDS/HIV medication is increasingly debated.
A patent entitles a pharmaceutical company to exclusive rights to their drug for a specific number of years, after which the right to produce the drug is extended to other pharmaceutical companies. In the United States, a patent typically lasts 20 years. Thus, patents provide pharmaceutical companies with lucrative incentives to invest in long-term, expensive research involved in developing AIDS/HIV medications. In exchange for patent protection, the company must disclose information about the drug which would otherwise remain secret as proprietary information. Many health care researchers and drug manufacturers then rely on the disclosed information to develop even more advanced drugs.
Pharmaceutical companies are, not surprisingly, advocates of strict patenting regulations. They claim that patents have little relationship to a lack of access to health care in developing nations. Instead, they blame the health care problems on a lack of medical infrastructure and socioeconomic barriers. They argue that even generic AIDS/HIV drugs are prohibitively expensive in developing nations. A variety of protease inhibitors, a treatment that helps stop the spread of HIV in patients, are not patented in many African countries and still remain unaffordable and unavailable to most. In addition, 95 percent of the pharmaceutical products on the World Health Organization's Essential Drug List are no longer protected by patents.
Opponents of a strict patenting system argue that patents are largely to blame for the lack of access to AIDS/HIV medication in developing countries. Additionally, they are harshly critical of the 1994 Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs). The TRIPs agreement allows drug patents to be valid internationally for twenty years. Further, it states that developing countries are not allowed to make or sell less expensive versions of patented drugs. The World Trade Organization (WTO), administrator of the agreement, can take legal action against any country that makes a less expensive drug.
TRIPs has been criticized as representing the triumph of developed nations over developing countries. Developing countries have little incentive to protect intellectual property through patents because they are not major producers of cutting-edge pharmaceuticals. On the other hand, supporters of TRIPs claim that the agreement struck a reasonable balance between the interest of public health and the private sector. More advanced countries believe that they are entitled to comprehensive international protection to ensure economic return on their pharmaceutical research and development. Patenting offsets the high price of producing a new AIDS/HIV drug, which can be as high as 500 million dollars by some estimates. Without international recognition of patents, there would be little incentive for pharmaceutical companies to develop new AIDS/HIV medication.
Indeed, balancing the competing interests of private industries and public health concerns is no easy task when it comes to patent regulations. Although patents are only one component of the global problem of access to medication, their role is critical enough to warrant a closer examination of current international policy.
