XVIII International AIDS Conference


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Patent pools and anti-competitive practices

Presented by Manmohan Amonkar (India).

M. Amonkar1, P. Sivasubramanian2

1Lawyers Collective HIV/AIDS Unit, Affordable Medicines Treatment Campaign, Mumbai, India, 2Lawyers Collective HIV/AIDS Unit, New Delhi, India

Issues: Although a patent pool, (an agreement whereby patent owners voluntarily license their patents to one another thereby permitting transfer of technology among members of the pool) is touted to be a panacea for providing affordable medicines to poorer communities and also a solution to rectifying a dearth in incentives for carrying out research certain precedents highlight concerns about implementing such a consortium.
Description: Past experiences with voluntary licences especially the terms and conditions of voluntary licensing dictated by multinational pharmaceutical companies, give rise to misgivings about the proposed patent pool. In 2006 when patent oppositions against 'Tenofovir' a HIV drug developed by Gilead were filed, Gilead offered voluntary licenses to 11 Indian generic companies on a condition they withdraw their patent oppositions. Indian generics were thus restrained from exercising their right to file pre grant patent oppositions. Similarly, an agreement entered into in Brazil prevented the government from reducing the prices of a key-AIDS drug for several years.
Lessons learned: The Gilead Voluntary licensing strategy highlights the adverse consequences that could ensue if such a consortium is implemented.There would be anti-competitive practices, preference for certain markets and exclusion of others as well as an increase in drug prices something completely contrary to achieving the object of establishing such pools.The incentive to carry out research would also gradually dwindle because of the creation of a “stop and shop” system for pharmaceutical companies.
Next steps: Recognizing the imminent dangers, the civil society and governments must carefully scrutinize the proposed concept and implementation of such pools. Efforts must be made to lobby against such a system and to seek transparency and accountability for every action that affects the right to health since the health of patients is of paramount importance and must not be compromised for economic benefits.

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