Patients Before Patents


Jamal* is 15-years-old and lives in an orphanage for HIV positive children in a poor district of Kuala Lumpur, Malaysia. Like millions of children in the developing world, he faces a precarious future, living with a life threatening disease in a country where the drugs he needs to keep him well are among the most expensive in the world.

Meanwhile, across the gulf of Thailand at the resort town of Kota Kinabalu, negotiators from 12 countries, including Australia, are meeting this week and next to continue negotiations on the Trans Pacific Partnership (TPP) trade agreement.

Jamal has a huge stake in the outcome of these negotiations, because in its current from – as far as we know, because the details are secret until finalised – the agreement would have the effect of extending high prices for HIV drugs and other medicines, by widening the ways in which pharmaceutical companies can gain, protect and extend patents for the drugs they produce.

This week the international president of Medecins Sans Frontieres has written to all the heads of state of TPP participating countries, including our own Prime Minister Kevin Rudd, to urge them to ensure access to medicines is not sacrificed in pursuit of trade objectives during these negotiations.

But it is not simply the provisions of specific trade agreements that Medecins Sans Frontieres is working to ensure serve the needs of public health. We need to go beyond this defensive approach and rethink how, as a global community facing global health threats, we go about producing the new drugs and treatments we need to meet these threats.

Proponents of the current approach will argue that pharmaceutical producers need to make large profits on the drugs that make it to market, in order to recoup the high costs of research and development, and ensure future innovation and drug supply. As a result patent law – which gives patent holders a legally protected monopoly on their products – is used to shield these companies’ products from competition, allowing them to charge high prices and make the profits they say are needed to invest in innovation.

However, a growing chorus of voices is questioning the logic of this approach. The basic idea makes sense: why invest in expensive research if your resulting idea is simply copied by your competitors? The counter argument runs that with a collaborative approach, or even a competitive one, innovation will be driven by the ability to quickly learn from others' ideas, adapt them, build on them and so keep improving the drugs and treatments produced.

Patents that delay this process actually put a brake on innovation rather than increase it. The problem is worsened where innovation is so wedded to high prices that low profit markets are simply ignored. With pediatric HIV almost eradicated in the rich world not too many pharmaceutical companies are thinking of Jamal’s needs. There are simply just not enough profits in drugs for HIV-positive orphans.

We saw the impact of this ‘market failure’ in the late 1990s when first line HIV drugs were costing over $10,000 per patient per year, preventing millions from accessing life saving treatment. Only through the concerted efforts of NGOs like Medecins Sans Frontieres and vocal champions like Nelson Mandela did drug companies agree to allow generic drug manufacturers to produce these drugs, bringing the price down by 99 per cent and in doing so saving millions of lives. The TPP negotiations represent a push back against this pro-patient trend.

Worryingly, this couldn’t be happening at a worse time. The World Health Organisation is currently discussing the need for global norms, including a global convention, to drive patient focused medical innovation. These efforts aim at help coordinate R&D investment from public and private sources, and promote innovation focused on patient needs, making it more affordable through the delinking of the cost of innovation from profits. There is still a long way to go with getting this approach into operation at a global level but the gains would undoubtedly be huge.

Most importantly though it is the experience of our patients around the world that gives most cause for concern in regards to the direction of the TPP negotiations. Increasingly HIV patients need second and third line treatments which remain prohibitively expensive. Neglected diseases, such as Multi Drug Resistant Tuberculosis, Sleeping Sickness, or Chagas which kill millions around the world are on the rise, but get little interest from the big pharmaceutical companies, who can’t make a buck in developing treatments for them. If the TPP trade agreement further extends the rights of big drug companies thereby raising drug prices for patients, governments and other health providers then the resources and focus needed to meet these new growing challenges will be undermined.

Back in Kota Kinabalu Australia has a key role to play. The TPP is not just about standardising trade arrangements to the mutual benefit of participating countries. The agreement represents an opportunity to put patients before patents, allowing space for a smarter, cheaper and more effective medical innovation model to flourish. Jamal may not know it but his life may depend on it.

* Not his real name.

Launched in 2004, New Matilda is one of Australia's oldest online independent publications. It's focus is on investigative journalism and analysis, with occasional smart arsery thrown in for reasons of sanity. New Matilda is owned and edited by Walkley Award and Human Rights Award winning journalist Chris Graham.