After more than two years campaigning for improved access to essential medicines for patients in poor countries, MSF's involvement in patent issues at times still elicits surprise: why does MSF, a medical humanitarian organisation, care about intellectual property rights?
The answer is the same as it was in Seattle in 1999, when MSF first addressed the negotiators of the world's trade rules at the 3rd WTO ministerial meeting:
We care because our patients in the developing world are dying. They do not have access to the medicines they need, either because they cannot afford them, or because the necessary drugs don't exist at all. This is an emergency on a global scale: infectious diseases kill more than 14 million people every year.
Some of this suffering could be prevented or alleviated if international trade rules and agreements, such as the TRIPS Agreement (WTO Agreement on Trade-Related Aspects of Intellectual Property Rights), stopped regulating essential medicines as if they were any other consumer product. Medicines aren't Barbie dolls or CDs - they are a matter of life and death for millions of people. Patents can become obstacles in providing affordable treatment, as the examples highlighted in this document demonstrate. MSF intends to continue fighting to put lives before commercial interests.
Price versus affordability
Although the price of medicines is by no means the only obstacle in providing treatment to patients in developing countries, it remains an important one. The actual production cost of a drug is only a fraction of its commercial price. The high prices of brand name medicines are largely a consequence of patents, which are used to exclude competition on the market for a long period of time. Patent regulations do not differentiate between a patient in a wealthy country and a patient in a poor country, which is why the price of medicines does not correlate with patients' ability to pay.
Patents - instruments of public policy
MSF is not against patents and patent legislation as such. True innovation deserves to be recognised and protected. But MSF wants human lives to take priority over profits and patents. MSF advocates a balanced intellectual property system which takes into account the specific needs and priorities of developing countries and follows the principles outlined in TRIPS: patents should benefit not only the innovator, but also those who need access to the innovation. Patents are not an end in themselves.
Rather, they constitute public policy tools with which to achieve benefits for society as a whole: a patent is a contract between public and private interests. When a patent monopoly is against the public interest - as is the case in many poor countries most affected by the HIV/AIDS pandemic - governments have the right and the obligation to free themselves from that monopoly.
Patents and R&D
It is often argued that patent protection is essential to ensure sufficient research and development for new medicines, and that the reason there is little investment
in tropical disease research is because patent protection in the countries most affected by these diseases is weak.
But experience has shown that drug development for neglected diseases - conditions that mainly or only affect people in poor nations - will not increase no matter how stringently patents are protected. This is because the people suffering from neglected diseases do not represent a lucrative enough market to drive research.
In fact, patents may even hamper medical research activities by creating control over research knowledge, which can then only be accessed through costly licensing agreements. This kind of arrangement is usually out of reach of governments and research institutes in developing countries.
TRIPS - a problem or a solution?
The WTO TRIPS Agreement sets out the minimum standards for patent protection all WTO Members must abide by. But it also includes rules to counter the negative effects of patent protection. The critical factor in determining the balance between these two elements is the interpretation of the Agreement on a practical level both now and after 2006, when the implementation of TRIPS is scheduled to be completed by all WTO Members - including least developed countries.
A long way from Seattle
Issues around access to essential medicines are better understood and more widely acknowledged now than they were two years ago, at the time of the third WTO Ministerial Conference in Seattle. There is growing consensus about ways to address the problems. But strategies that are proving effective, such as those helping to reduce the cost of AIDS medicines in developing countries, will soon cease to function unless a pro-public health interpretation of TRIPS is assured.
The objectives of the TRIPS Agreement are not met if essential medicines are not made available in an effective and equitable manner. This is why MSF is calling on WTO Members to take concrete action now and show that people matter more than patents.