In Malaysia there are roughly 100,000 people living with HIV, of which approximately a quarter are currently on antiretroviral treatment.

The problem

The patentability criteria in Malaysia, which makes it easier for companies to extend patents, is one reason that HIV treatment is out of reach for so many people. Malaysia signed the Trans Pacific Partnership (TPP) in October 2015, although this has not entered into force yet. It is also negotiating a free-trade agreement with the European Union. These agreements threaten to further undermine access to medicines.

After Malaysia’s use of a compulsory license in 2003, multinational pharmaceutical corporations attempted to pressure the government, with misinformation, against its use. This resulted in less enthusiasm from the government for compulsory licenses, and a move towards voluntary licenses.

The Malaysian Ministry of Health (MoH) only purchases antiretroviral drugs (ARVs) that are non-patented or whose patents have expired. The current situation of ‘evergreening’, combined with the MoH’s procurement choices, results in an urgent need to improve the patentability criteria and capacity for patent examination. This would stop patents being granted when there is no real innovation. The current situation results in more expensive, and less effective drugs being prescribed.

The background

In 2003, Malaysia was the first country to use a compulsory license to import first-line ARVs from India after TRIPS flexibilities were brought in through the 2001 World Trade Organization (WTO) Doha Declaration.

In 2006, Malaysia halted its negotiations for a free-trade agreement with the United States. One of the unresolved areas were the intellectual property issues raised by civil society groups, in particular, advocating for the use of TRIPS flexibilities for public health purposes.

The Positive Malaysian Treatment Access & Advocacy Group (MTAAG+) works to implement TRIPS flexibilities into the law and in practice, and prevent intellectual property provisions that go against public health in bilateral and plurilateral trade agreements, in particular access to affordable medicines. MTAAG+ collaborates closely with Third World Network (TWN), a Malaysian-based international organization with expertise in intellectual property and public health.

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