Fixing the broken patent system: From Marrakech and back again

Marrakech was home to the signing of the TRIPS Agreement in 1995, an agreement that has been exploited by pharmaceutical companies to put profit before patients, resulting in essential medicines being out of reach for millions. 23 years later, our summit gathered people with the knowledge and skills to redress the balance.

“I started HIV treatment at the same time as the TRIPS Agreement was enforced in Brazil,” said Veriano Terto, from ABIA, Brazil, during the opening of our inaugural Global Summit on Intellectual Property and Access to Medicines (15-17 Jan 2018). “Access to medicines is more and more an issue of inequality… it’s painful to see new medications coming about but with very high prices.”

Alia Amini, Advocacy Officer at ITPC MENA, was born in 1995 when the Trips Agreement was signed in her home city of Marrakech. “I am dedicating my career to trying to solve a problem that my generation has inherited.”

Throughout the summit there was widespread agreement that the ‘system’ is broken, a system which has over-protected the rights of patent holders, a system that has “made HIV hugely profitable” said Andrew Hill, University of Liverpool, UK. A “broken and failed system” that results in “outrageous” prices according to Jorge Bermudez, UN High Level Panel on Access to Medicines. Bermudez reminded participants that “there is a difference between costs and prices of medicines”. The University of Liverpool has completed research compiling the cost of producing all the drugs on the WHO’s essential medicines list. The research shows, “in short, that they’re all cheap to produce” says Hill.

Babalwa Malgas, Cancer Alliance, South Africa, reminded us of the human cost of this greed and the over-protected status pharmaceutical companies enjoy. Her childhood friend Tobeka Daki lost her battle with breast cancer. It’s not that a drug that could have saved her life didn’t exist, it did, but Roche’s greed kept it out of reach for Daki. Malgas said when her friend’s orphaned children came to ask her “why I had survived and their mother hadn’t, I felt I’d defrauded them… but I didn’t defraud her, the intellectual property laws did.”

Against this backdrop of injustice, where too many real life examples highlight how “the current system drives drugs into where there is the highest profit, not the greatest need,” as Michelle Childs, DNDI, Latin America, pointed out, the atmosphere of the conference was geared to chart a way forward. Using the combined knowledge and experience in the room, the aim was not just to share information, but to result in real change. “Marrakech was the location of the source of the issue,” said Khadija El Gabsi, ITPC MENA. “It will now also be the location where we will find the solution.”

“Same common goal”

It wasn’t your usual conference. With donors, activists, researchers, patent offices and generic producers among the participants, there were contrasting opinions and different priorities.

“It’s meant to make you feel you uncomfortable,” said Solange Baptiste, Global Director of ITPC. Baptiste urged the participants to dig deep to work through the uncomfortableness.

Whether from a patent office trying to balance the needs of citizens of particular country and the ‘rights’ of big business, or activists working on a specific disease or in a specific place, the different perspectives centred around one common goal, “to get medicines into the hands of the people” as Loon Gangte, ITPC South Asia Regional Coordinator, put it, adding: “you can trade whatever you want – my belt, my pants, my shoes – but you cannot trade our lives.”

No-one knows what the medicine they personally may need in the future will be, so there was broad agreement that we need to move away from a drug by drug, country by country approach. “It’s no good being cured of one disease to die of another,” said Bermudez. A sentiment echoed by Anele Yawa, TAC General Secretary, Chalermsak Kittitrakul, AIDS Access, Thailand and others.

“Pharma greed is not justified in any country – high income, middle income or low income or in any disease,” said Othoman Mellouk, Intellectual Property and Access to Medicines Lead, ITPC.

We CAN fight them

We need “a radical stance against the current system.. it’s possible to do things differently,” said Gaelle Krikorian, IRIS and ITPC MENA.

It’s a man-made system after-all, as Gangte reminded us, which means there can be man-made alternatives, man-made solutions. “We need to challenge the status quo” said Baptiste, which you can do once you’ve accepted that it can change.

Big Pharma appears motivated by profit and profit only, and with their exorbitant profits they can afford to throw their legal weight about. “Too much credence is given to Big Pharma’s strategy,” said Pauline Londeix, HIV activist.

It is possible to stand up to Big Pharma, as Malaysia’s Ministry of Health demonstrated, when it issued a compulsory license on sofosbuvir, a license which effectively overruled Gilead’s monopoly on the Hep C drug in the interest of public health, so that Malaysia can procure cheaper versions of the essential medicine to provide a cure for the estimated 454,000 people living with Hep C in the country. The Ministry of Health was awarded the #GSIPA2M 2018 Leadership Award for this historic decision. Wame Mosime, Director of Global Programmes and Advocacy at ITPC, presented the award saying: “On 20 September 2017, Malaysia’s Health Minister said ‘enough!’ to Gilead’s dangerous games with patients lives by using their right under the TRIPS Agreement and Malaysian law to issue a compulsory license. We hope other countries will do the same… when faced with unjust patents and the abuse of patent monopolies.”

“It’s a country’s right [to use TRIPS flexibilities], it’s not illegal”, said Bermudez. ““Pharmaceuticals must refrain from implicit or explicit threats or tactic that undermine the right of WTO members to [do so].”

Even though compulsory licenses are a right and should be commonplace, Malaysia’s decision stands out because the pressure exerted by pharmaceuticals means that governments are reluctant to use this right, instead essentially bowing down to companies’ demands and spending far more of stretched health budgets on unjustifiably expensive drugs, and having to make difficult decisions about which drugs to purchase, and who gets the drugs when there is not enough to go round.

Dr. Salmah Bahri collected the award for the Ministry, saying: “We are facing a lot of challenges and need the support of this summit to face these… We will not just stop at HIV and hepatitis drugs, we will move forward with all of you to make sure all medicines are available to all people, as a human right.”

While we want to forge ahead with global coordinated response that tackles all pharmaceutical patents, these bold step-by-step actions pave the way. We still need the short and medium-term solutions as well as the long-term goal, as advocated for by Tahir Amin, I-MAK.

Multinationals must be held accountable

What is clear, whether short or long term, is that we will no longer stand for these corporate abuses. A core theme that came through loud and clear was the need to hold multinational corporations accountable. “The system is killing people, and will keep killing people unless we fight back,” said Felipe de Carvalho, ABIA. It’s time to accuse them of being criminals.” His colleague Pedro Villardi, added: “The end of impunity is coming.”

Franciso Rossi, IFARMA, sees that it’s the role of civil society to hold MNC’s accountable, along with governments, UN organisations, generic producers, etc. “If not us, then who? If not now, then when?” Baptiste agreed enthusiastically.

To achieve the long-term goals and place human rights at the top of the health agenda, the sustained commitment of donors is essential, yet for many the issue of intellectual property is just not “sexy enough” Lynette Mabote, ARASA, observes. Partners of the the Make Medicines Affordable campaign, including ARASA, are busy demonstrating why it’s essential. Thankfully some donors do get it. Karin Timmermans, Unitaid, says she recognises the “importance of civil society doing this work which can, and does, have enormous impact. She said she was proud to stand there representing “probably the biggest donor on IP and access to meds” but that “we would be delighted to have a whole row of donors funding this work”.

Aidsfonds is the other key donor in IP and treatment access, also recognising both the effectiveness and vitalness of the work, “For a relatively small amount of funding there have been big achievements,” said Jorrit Kabel. “Prices of medicines are the main barrier in terms of access,” he said, specifically in relation to HIV, which is a particularly profitable business as “lifelong treatment” is required. “We need a sustainable solution and we should start now.”

Patent-free future

Patents are the status quo that needs to rocked. The pharmaceutical companies spout that the monopolies created by patents encourages innovation, and that the prices reflect the research and development (R&D) costs, but “the innovation is a lie” states Villardi, as our evergreening film outlines simply. Even when there is a genuine breakthrough, “can any honest researcher really say it’s their invention?” asks Terto, “or is it the result of a huge body of scientific work?”

With regards to the R&D costs, it’s been proven again and again that this is a spurious justification, as the University of Liverpool’s research attests.

Allan Maleche, KELIN, pointed out how health commitments made by governments are being hindered by the current system: “Most countries in the region (Africa) have made commitments to protect pharmaceutical’s IP rights… and most countries have also committed to achieving universal health coverage [or SDG3].” Health goals and costly patents do not go hand-in-hand.

Mohammed Said Saadi, a representative from the Government of Morocco, said, “we’re fighting on TRIPS plus when our struggle should be to fight TRIPS itself”. Bermudez called for “a patent-free future”, echoed by Mellouk. During the closing ceremony, Mellouk said: The global trade rules that bind and chain us and our fates and our future to the fate of corporations must be broken. The pedagogy that tells us that corporations must survive and prosper for us to survive and prosper must be overturned.”

“As we leave Marrakech where the global trade rules of the TRIPS Agreement were brought to bear on us, we must think of turning our principles into actions…I do not believe that what we are discussing is a radical agenda. It is a realistic agenda.”

Our vision for change is clear – a world where everyone can access the essential, optimal treatment they need at an affordable price. To achieve this we need to fix the patent laws and put people first.

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