Mail & Guardian (Johannesburg) - November 2, 2001
Belinda Beresford

In the United States, where four people have now died of anthrax, the government hasn't built its antibiotic stockpile from generic drugs, but used the threat of doing so to force a dramatic price reduction from the patent holder. Again, a move to be applauded, especially by the many people taking prophylactic antibiotics in case they've been exposed to anthrax.

But the US and Canadian actions are likely to stir further accusations of hypocrisy and double standards towards developing nations next week at the World Trade Organisation's (WTO) meeting in Doha, Qatar. High on the agenda of the 4th WTO Ministerial Conference is the issue of access to medicines. Both countries are among those opposing a proposal put forward by more than 60 developing nations asking for a declaration that patent rights be lifted in cases of national health emergencies, such as HIV/Aids.

Canada was forced to backtrack on its decision to give a generic manufacturer a compulsory license - permission to overide a patent and produce ciprofloxacin - and instead has agreed to first buy from the brand holder, Bayer. The brand-name drug is known as Cipro in the US or Ciprobay in South Africa.

The US government's negotiations tactic meant that Bayer brought down the price of the antibiotic from about $1,77 per pill to $0,95.

While the US is willing to use its might to squeeze pharmaceutical manufacturers in case of an emergency, it has been vehemently opposed to other countries wishing to do the same, even in the face of the HIV/Aids epidemic. Internationally, patents are being regularised by the WTO's agreement on trade-related intellectual property rights (Trips). A controversial agreement, in part because of differing interpretations of what exactly it means, Trips is being assailed both by those who wish to strengthen patent rights and those who say the agreement puts an excessive burden on some developing countries. By 2006 all WTO member nations must be Trips compliant.

Trips gives pharmaceutical companies two decades of exclusive rights to drugs they develop, to allow them to recoup costs of research and development, and to subsidise such investigations into the many drugs which fail to make it to the market. However, the agreement does allow easing of patent rights in cases of national emergencies.

Developing countries wish to make it easier for countries facing health emergencies to manufacture or import cheaper and/or generic drugs. In turn, some developed countries, including the US and Switzerland, wish to strengthen intellectual property rights.

But many activist organisations, such as M d cins sans Fronti res, Oxfam, and the local Treatment Action Campaign, argue that double standards apply. Developing nations that attempt to combat the HIV/Aids epidemic by compulsory licensing of medication or allowing parallel importing (where a country buys brand name drugs cheaper elsewhere in the world and then imports them) have faced trade sanctions and court cases.

South Africa is the shining example: earlier this year it won a court battle against 39 pharmaceutical companies which were seeking to stop legislation that would allow the government to acquire cheaper or generic drugs to help the estimated 4,7-million people infected with HIV. The South African government argued that its tactics were legal under international patent laws, but it faced international opprobrium from many quarters for "patent busting". The US has already faced charges of hypocrisy, given its frequent use of compulsory licensing - allowing non-patent holders to use a patent - in the national interest. According to the Washington-based Consumer Project on Technology, in September the US government issued 178 compulsory licences, mainly regarding software.

Those seeking to strengthen Trips argue that lack of protection for intellectual property rights will lead to less innovation and investment in research and development.

The opposing view is summarised by a strongly worded statement from Brussels last week. South African Minister of Health Manto Tshabalala-Msimang and her Belgian counterpart (and European Health Council president) Magda Aelvoet called for revision of the Trips agreement: "...it is a crime against humanity for poor people to die because lifesaving medicines are too expensive".

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