Patents Kill Patients: A case for the future of Covid-19 treatment

The era of the AIDS pandemic offers important insight into how patent laws can be complicit in the loss of lives. This insight has gained a newfound importance in light of the COVID-19 pandemic and the race to find a vaccine.

How do patents work?

A patent gives the inventor or owner of an invention the exclusive right to sell, use, market and import the invention for a limited period of time. During the time that the patent is active, nobody else can do any of the above without the consent of the owner of the patent. The objective of patent law is to promote innovation that solves existing problems in a certain field while guaranteeing inventors exclusive rights to the profits of their inventions. At its core, patent law should not be used to make as much money as possible, but this has become the reality. As the saying goes: where there is a crisis, there is opportunity.

What can we learn from the AIDs crisis?

The Acquired Immunodeficiency Syndrome (AIDS) ravaged the globe around the late 1980’s to the early 2000’s. As the virus spread, so did the race to find a cure. The first drug clinical trials were conducted around 1986 and following their relative success, were followed by a series of new AIDS drugs in the 1990’s Antiretroviral drugs (ARVs). A decline in AIDS related deaths in the US, saw a series of ARV drug patents being filed by pharmaceutical companies. These companies then licensed the drugs to pharmaceutical companies across the world, however at a premium. For example, in the late 1990’s ARV treatment cost approximately USD1000 per month. To put it into perspective, the average South African ANNUAL household income at the time was about USD2600. This meant that essentially only the wealthy could afford the treatment and the poor were, well, supposed to “make a plan” or die.

As the pandemic spread, developing countries sought cheaper means of accessing ARVs. Luckily, a generic ARV had been developed in India and was available for a fraction of the cost of its American counterparts. However, most nations could not import these generic drugs as this would violate Patent laws and the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) which forbade the importation of generics of patented drugs in member countries. Generic drugs are replicas of brand-name drugs and have the exact same usages, dosages and effects. India was able to create this generic drug because of the TRIPS agreement flexibilities which gave developing countries up to the year 2005 to apply the TRIPS terms to their domestic laws. At the time the patents for ARVs were filed, India had not yet done so and thus, they were able to produce them on a technicality. The TRIPS Agreement sets minimum standards in the international rules governing patents (including patents on medicines). It applies to members of the World Trade Organisation. This agreement, despite guaranteeing patent owners their rights, also allows exceptions. For example, in a state of health emergencies a country can either use what’s called a compulsory license or allow parallel importation. A compulsory license allows for a government to license the use of a patented invention to a third party or government agency without the consent of the patent-holder while a parallel importation is the importation without the consent of the patent-holder of a patented product marketed in another country either by the patent holder or with the patent-holder’s consent.

South Africa relied on such exceptions when the government then tried to amend its Medicines and Related Substances Control Act (MRSCA) to allow for importation of cheaper generic ARVs from India. This prompted outrage from the US and US based pharmaceutical companies who they alleged that such an allowance would violate the TRIPS agreement and would strip patent owners of their intellectual property rights. Fortunately, the matter never had to be decided before an international tribunal as the US withdrew from their stance, likely due to growing public outcry.

What seemed like a win was however short-lived and gave rise to what have come to be known as “TRIPS-PLUS” agreements. These are contractual agreements between one or more countries which contain tougher, more restrictive terms in patent law than is required by TRIPS. While countries are not obligated by international law to agree to these terms, many developing countries have had no choice but to adopt their terms as they are often included in trade deals. For example, if South Africa wishes to trade with the Zimbabwe, South Africa may include a term in the agreement which would prevent Zimbabwe’s national drug regulatory authorities from registering a generic version of a drug that is under patent in South Africa.

Thus, in the event that a cure for COVID-19 is found, many developing countries may be subjected to stricter patent laws than necessary. This means that a good chunk of developing countries will be blocked from purchasing lower priced generic drugs and be subjected to whatever price point is decided for them. Unfortunately for them, they are at the mercy of their trade partners now.

However for those nations that are not parties to TRIPS-Plus agreements, the time to amend patent laws to allow for access to medicines for all, is now! Already there has been a push by a number of organisations that are lobbying for the relaxation of Patent laws in anticipation of a cure being found. One such organisation is Fix the Patent Laws who have actively called for the president of South Africa to urgently amend the country’s patent laws to ensure access to medicines for all.

We have already seen some countries banning exports of Covid-19 diagnostics products and one can only assume that in the event of a cure, these bans will further be strengthened. Many African countries have not yet amended their laws to accommodate the flexibilities granted by TRIPS and if these are not actioned as a matter of urgency, we may find ourselves at the end of a sharp stick once again. The international community hopes (rather naively) that pharmaceutical companies will not chase profits at the expense of human lives. But if the actions of pharmaceutical companies during the AIDS pandemic are anything to go by, then we need to Act fast to ensure that our laws reflect our attitudes towards dealing with the pandemic and achieving an egalitarian society in which everyone has a fair chance at life.