- Thai civil society urges the Department of Intellectual Property (DIP) to reject Fujifilm-Toyama’s patent requests for favipiravir, a drug which Thailand uses in the treatment of COVID-19.
- During April 2021, the number of COVID-19 cases sky-rocketed in Thailand. At the same time, favipiravir was on the verge of being stocked out – hospitals received orders to use the drug more sparingly.
- Thailand has the ability to manufacture a generic version of the same drug. Fujifim’s patent requests must be rejected in order to pave the way for an affordable and reliable supply.
- If the patent applications are not rejected, and quickly, civil society recommends that a compulsory license (CL) is issued urgently.
Thailand is experiencing its third wave of COVID-19, with the number of cases and hospitalisations increasing exponentially during April 2021. The number of cases are almost ten times what they were at the end of December (up from 6,690 on 31 December 2020 to 65,153 on 30 April 2021).
Hospitals have been using favipiravir in the treatment of COVID-19 patients. During the pandemic Fujifilm-Toyama has increased the price, and there are issues with supply. Last week, hospitals received instructions to use the drug more sparingly, due to the shortage.
NGOs and academics working to increase access to the drug demand that the DIP urgently refuses the corporation’s request to patent favipiravir, and paves the way for the Government Pharmaceutical Organization (GPO) to speed up its production.
It is not the first time that civil society has urged the DIP to act on this issue. AIDS Access Foundation and the Thai Network of People Living with HIV/AIDS (TNP+) submitted documents explaining why favipiravir should not be patented, to the Director General of the DIP on 17 September 2020, and met with the DIP’s Director General on 26 January 2021 to request that the DIP speed up the examination process, knowing that if Thailand faced another peak of the pandemic the country would inevitably require a greater amount of favipiravir – which has now happened.
Chalermsak Kittitrakul, Project Manager of AIDS Access Foundation, stated: “Still, right up to this day, the DIP has yet to make a decision on Fujifilm’s application, and even allowed the drug company to amend their patent request, ultimately buying more time. If the examination process continues to be delayed then the civil society sector demands that the government issues a compulsory license (CL) for favipiravir, as was done for other essential drugs back in 2006-2007, in order to import or produce drugs at affordable prices and use them to treat patients free of charge.”
Nimit Tienudom, Director of the AIDS Access Foundation, said: “It is the government’s obligation to act. In this case, it is a national crisis. The government needs to issue a compulsory license. We cannot just place our hopes on the DIP. The government needs to have a better vision and solve the country’s access issues more intelligently. The GPO is ready to produce favipiravir. The GPO had already requested to register the drug with the Food and Drug Administration (FDA) and it expects to receive approval this September.”
Many drug companies in India are also able to produce favipiravir. Indian generic companies and Thailand’s GPO can produce the drug half the price, or less, of what Fujifilm is charging.
In the past Thailand bought over 400,000 tablets of favipiravir from the originator company at the price of THB 125 per tablet (USD 4). Recently Thailand placed an order of 2 million tablets which was due to arrive in Thailand on 26 April. The corporation increased the price, to THB 150 per tablet (USD 5).
To respond to a new variant of COVID-19, patients have been treated with more tablets, up from from 40 – 70 tablets to 50 – 114 tablets, which also increases costs. Fujifilm is receiving increased orders and increasing its price per tablet.
It is not only Fujifilm presenting barriers, according to Chalermsak, the DIP is also increasing barriers to access – instead of removing them like many other countries are in response to the needs brought about by COVID-19.
“In an amendment to the Patent Act, drafted by the DIP, the section related to compulsory licensing (CL) was changed, making it more difficult to enforce. The COVID-19 pandemic has provided further evidence that patent monopolies are an issue. Chile, Israel, Ecuador, and Russia all issued CLs for medicines and medical equipments required to prevent and cure COVID-19. Germany, Canada and Indonesia enforced an Emergency Act to amend their Patent Acts to reduce the steps needed to enforce CLs. South Africa and India have developed a proposal for the World Trade Organization (WTO) to suspend the enforcement of the intellectual property (IP) laws in every country to promote the production and accessibility of medicines, medical supplies and medical equipments used to fight against COVID-19 – and more than half of the WTO members agreed,” said Chalermsak.
In the draft amendment, the DIP wrote that a CL would first need to receive approval from the cabinet. This is an extra step. In the current law it only requires approval from any ministry or department. The DIP’s proposal also allows the patent owner to file a lawsuit to challenge a compulsory license. Governments must have autonomy over when they can issue a CL to ensure they can, at all times, act to protect public health.
Putting the future of Thailand’s health at risk
The government is putting the future use of CLs at further risk by continuing to negotiate Thailand’s membership in the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP), despite the fact that the Ad Hoc Committee on Senate Affairs and the parliament agreed that Thailand should not participate. In the CPTPP, the use of CLs may become a cause for lawsuits and ensuing damages, despite CLs being a legitimate flexibility in the TRIPS Agreement for all WTO members. Additionally, other terms within the CPTPP would also hike the prices of essential drugs.
“These are costly decisions, that neither the government or the people of Thailand can afford. Thailand has capacity to manufacture drugs and it has the right to protect public health – decisions that worsen the financial and literal health of the country must be stopped. Access to health and the right to survive, must be non-negotiable in trade agreements or in talks with individual corporations,” says Chalermsak.