[e-drug] MSF - Brazil rejects patent on an essential AIDS medicine (6)

e-drug
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E-DRUG: MSF - Brazil rejects patent on an essential AIDS medicine (6)
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Michele

I agree with you that the right to health and therefore to health care
should be enshrined in all countries constitutions and people should be
able to exercise this right.

However, I am not sure what the example of post communism illustrates. I do
not know if communist societies instigated "rights" to health. However, it
seems that once that system collapsed, people actually lost their
"state-guaranteed" access to free health care. TB increased in Russia as
the health system collapsed. Poor people in many of those countries are
forced to pay for health care - except they do not have the money to pay
for expensive privatised care.

Perhaps because people do not have "right to health" in the US, millions
are having to choose between food and paying for health care.

On Brazil, as you say, the country used a right which enshrined in its
laws.

Best wishes

Mohga

Dr. Mohga M Kamal-Yanni
Senior health & HIV policy advisor
Oxfam GB
Tel: + 44 (0) 1865 472290
Fax + 44 (0) 1865 472245
Mobile + 44 (0)777 62 55 884

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E-DRUG: MSF - Brazil rejects patent on an essential AIDS medicine (7)
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To clarify: when I referred to post communism I meant to indicate that in
communist societies private property rights were not completely recognized.
The move from such an economic and political model to another kind involved
the establishment of private property rights in the legal system and of
course a legal system. Legal systems are based on the rule of law and its
implications, one of which is that civil servants and private actors
function within its boundaries. One boundary is for civil servants to grant
rights such as patents according to the law. If Brazil did not do so as is
questioned by a commentator to e-drugs list serv then that should be
worrisome to all as if any right is abridged then all rights are at risk.
Let me also be particularly clear on this point. I do not make a judgment on
what Brazil did or did not do. I do not have the facts at hand as to what
the application was for. I do know however that if a decision was made
without complying with the legal requirements I would be very concerned and
propose that all of us should be as well for the risks such a path presents
to all rights.

Michele Forzley
Visiting Distinguished Professor of Law
Widener School of Law
Wilmington, DE
301-565-0680

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E-DRUG: MSF - Brazil rejects patent on an essential AIDS medicine (8)
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Summaries of the grounds for the Brazilian rejection of the patent on
tenofovir (lack of inventive step) were publicly available at the time that
Prof. Forzley's defense of private property rights and claims of violation
of the rule of law was made. Before making such serious accusations, it
seems that the facts should be checked. Some commentators believe that
every rejection of a patent is unwarranted and that oppositions by civil
society are inherently suspect. To the contrary, in pursuing the human
right of access to medicines, countries are fully justified in enacting and
enforcing high patent standards and it utilizing opposition procedures to
improve patent examinations.

Professor Brook K. Baker, Health GAP
Northeastern U. School of Law
Program on Human Rights and the Global Economy
400 Huntington Ave.
Boston, MA 02115
617-373-3217 (office)
617-259-0760 (cell)

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E-DRUG: MSF - Brazil rejects patent on an essential AIDS medicine (10)
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Dear All,

This decision has prompted a long string of commentary - that's good.

1. I applaud Mr. Martins Emeje for having the courage to point out in the e-drug forum that patents are granted in the public interest and that means of rewarding innovation must be preserved in order for drug discovery to be carried out. Martins is a very bright young man with an outstanding future ahead of him. I know him personally and I recommend him to you.

2. I also applaud Gilead Corporation, the originator of the drug tenofovir disoproxil fumarate. They have granted literally dozens of voluntary licenses to generic companies in an effort to increase access to this very important HIV/AIDS drug to low-income countries around the world.

But also it's worth pointing out:

3. Brazil has for a long time exercised the rule of law - including IP rights - at the highest levels.

4. I did not interpret Professor Forzley as accusing Brazil of failure to do this, he was speaking in general terms.

5. Even a short visit would convince most of us that Brazil has good governance and some fundamental assurances that the US would do well to critically assess for incorporation - in our own way - into the US Healthcare system. Brazil has worked very, very hard at IP and even short conversations with those in government make this abundantly obvious.

6. We in the most developed countries must be careful not to presume bad systems of governance in emerging nations. Lack of money does not equate to lack of conscience. Sadly, more often the reverse is true.

7. We all agree (I think) that innovation must be appropriately rewarded and property rights respected, but we all know that people cannot just be left to die because of property rights. How many revolutions have been sparked by the clash between fundamental human dignity and property rights?

8. High income countries value IP very highly, particularly as they become post-industrialized societies. Low income countries cannot afford such premiums on essential technologies. We are all struggling to negotiate the right balance.

9. WIPO and TRIPS were written and constructed so as to allow for exactly the situation we see with respect to Brazil and tenofovir. Separate countries can realistically exercise the rule of law and come to somewhat different decisions with respect to IP issues. I cannot and will not guess as to how Brazil arrived at their decision, but we must be very careful to understand their reasons for doing so before we question this specific decision. I am sure the ruling will be appealed, and perhaps we can enjoy discussing this for quite some time longer.

Joseph M. Fortunak
Associate Professor, Chemistry and Pharmaceutical Sciences
Howard University
525 College Street NW
Washington, DC 20069 USA
+1 202 806 6880 (office)
+1 301 928 7568 (mobile)
jfortunak@comcast.net (preferred)

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E-DRUG: MSF - Brazil rejects patent on an essential AIDS medicine (11)
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Although I agree with Prof. Fortunak's measured and comprehensive response
to this long string of commentary, I think he underemphasizes the
potentially damaging effects of gratuitous attacks on decisions such as
that issued by the Brazilian patent office. These "attacks" do not occur
in a vacuum. There is a long history of Big Pharma, the U.S., E.U., and
Japan calling every denial of IPRs piracy, theft, and worse. Even when
countries were not yet legally required to grant patents on medicines,
countries were castigated as law breakers, violators of the rule of law,
and expropriators of property. Mr. Emeje went even further and accused
Brazil of having been manipulated by civil society activities even though
those activists were simply utilizing lawful opposition procedures to
ensure that prior publication and prior art concerning tenofovir was
brought to the attention of Brazil's patent examiner.

I think it is important to stand up for the right of health activists (and
generic competitors) to oppose patent applications on issues of novelty,
inventive step, and industrial applicability. Likewise, I think it is
important to stand up and defend rational and lawful decisions by patent
authorities when they reject patents according to TRIPS-compliant patent
standards - as India did on Glivec and as Brazil has now done on tenofovir.

Professor Brook K. Baker, Health GAP
Northeastern U. School of Law
Program on Human Rights and the Global Economy
400 Huntington Ave.
Boston, MA 02115
617-373-3217 (office)
617-259-0760 (cell).