Patent protection clauses weaken ARV access

Pressure on developing countries to adopt clauses affecting intellectual property rights could limit access to generic antiretroviral (ARV) drugs in Asia and the Pacific, experts and activists warn.

“We are very concerned about the sustainable future of HIV treatment programmes,” Steven Kraus, director of the United Nations Joint HIV/AIDS Programme (UNAIDS) in Asia and the Pacific region, told IRIN. “Countries must use all the means at their disposal, including the TRIPS [Trade Related Aspects of Intellectual Property Rights] flexibilities, to ensure sustainability and the significant scale-up of HIV services to reach people most in need.”

Member states of the World Trade Organization (WTO) are required to comply with TRIPS agreements but are allowed important flexibilities, including compulsory licensing and parallel imports in manufacturing and procuring generic versions of patented medicines. Countries must incorporate these flexibilities into their national legislation. Members categorized as Least Developed Countries (LDC) are exempt from TRIPS agreement until 2016, with the possibility of further extension.

However, bilateral and regional Free Trade Agreements (FTAs) and Economic Partnership Agreements could contain clauses that undermine the TRIPS flexibilities, such as extending the life of patents beyond 20 years.

These clauses, generally known as TRIPS-plus provisions, could affect public health in Asia and the Pacific regions, UNAIDS and the UN Development Programme (UNDP) warned in a joint brief. “To retain the benefits of TRIPS Agreement flexibilities, countries… should avoid entering into FTAs that contain TRIPS-plus obligations that can impact on… [the] price or availability [of pharmaceuticals],” the UNAIDS/UNDP brief noted.

The World Health Organization (WHO), the UN Children’s Fund (UNICEF) and UNAIDS Progress report for 2011 puts the number of people receiving ARV therapy in Asia and the Pacific at 980,000 - almost triple the number of HIV-positive people being treated in 2006.

Despite this progress, only 39 percent of the people who need ARV treatment receive it, and statistics vary widely across the region, partly because of cost. Cambodia has an estimated 92 percent treatment coverage, Thailand has 67 percent, Malaysia 36 percent and the Philippines 51 percent, according to the report.

In Myanmar the situation remains dire. Of the 240,000 people thought to be infected with HIV, only 24 percent have access to ARVs and are in the more advanced stages of HIV/AIDS, said the international health NGO, Médecins Sans Frontières (MSF).

''We are very concerned about the sustainable future of HIV treatment programmes. Countries must use all the means at their disposal, including the TRIPS flexibilities, to ensure ... the significant scale-up of HIV services''

“Only about one-third of people [in Asia and the Pacific] in need have access to treatment,” said Kraus of UNAIDS, warning that in the current economic climate sustaining even that in the long term will be a challenge.

Among the FTAs under negotiation, including the agreement on data exclusivity between the European Union (EU) and India, the Trans-Pacific Partnership Trade Agreement (TPP) is of particular concern. TPP is a multilateral trade agreement among nine countries: Singapore, Malaysia, Vietnam, Brunei Darussalam, Australia, New Zealand, Chile, Peru, and the United States. Activists worry that TPP will threaten access to generic medicines and are urging those countries still negotiating, such as Malaysia and Vietnam, not to join.

“TPP is a free trade agreement that goes far beyond what the WTO requires. It could impact access to second- and third-line ARVs, with devastating effects on people’s lives,” said Paul Cawthorne, an access to medicines campaign coordinator at MSF in Bangkok. “TPP could also impact access to first-line ARVs and block people from receiving life-saving treatment.”

However, a statement by the Office of the United States Trade Representative on 10 July noted that the proposals on intellectual property rights were still being negotiated, and the TPP agreement would boost trade and investment among partner countries, bringing economic growth and development, and addressing key issues such as worker rights and the environment.

The issue of access to affordable medicines and the TRIPS-plus provisions is expected to feature high on the agenda of the 19th International AIDS Conference in Washington on 22 July.

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