Our Wealth or Their Lives? The Patenting of HIV/AIDS Drugs

21 Oct 2018

When Jonas Salk, who developed the polio vaccine was asked who owned the patent, he replied, “Well, the people, I would say. There is no patent. Could you patent the sun?”

Do the rich world’s patents abandon the poor to die.?

This is the question I asked myself on attending a seminar presentation at GAVI Alliance on HIV/AIDS and the Patenting of Drugs some years ago. Then I was on attachment at Duke University, Sanford School of Public Policy, a WHO Global Health Fellow at Geneva, Switzerland.

Will the HIV and AIDS silver bullet ever be found? Or is the AIDS industry a cash cow?

The patenting of HIV/AIDS drugs is creating a devastating effect on developing countries. Since the introduction of HIV/AIDS medicines, statistics have shown that fewer people in the west are dying of AIDS and people are now living long, productive lives. 

However, a major obstacle to obtaining necessary drugs in the developing world is the extortionate prices of treatment set by the pharmaceutical companies.  While in the western world this hurdle has been negotiated, in the developing world, many areas still cannot afford treatment.  The present unsatisfactory patent system grants monopoly rights over an invention, thus enabling owners of that patent to charge exorbitant prices as there is little or no competition.

This is especially evident in Africa where the HIV/AIDS crisis has reached pandemic proportions.  The main question to be considered is how the pharmaceutical industry justifies putting wealth before life?  Pharmaceutical companies’ claim they need to charge high prices to recover high costs incurred in essential research and development (R&D).

However, this statement is far from the truth. 

Pharmaceutical companies exaggerate R&D figures, thus inflating the price marketing and administration (M&A) of essential drugs.

High prices are actually aimed at maximizing profits rather than for the purpose of recouping R&D expenses and securing scientific advancement.  High prices go towards paying lobbyists.

The patent system at present is depriving people of life saving drugs and the patent right allows companies to set prices above a person’s right to life.  Since the early days of cocktail therapies, the major obstacle to treatment has been the cost of drugs. 

The cost of ARV therapy can be between $10,000 and $15,000 per patient per year, consider this against the daily income of an AIDS sufferer in Africa which is approximately $2.40 per day.

This glaring contradictions clearly illustrate why the situation has reached such an appalling situation.  The companies who manufacture these drugs have generally charged prices for them which put the medicines out of the budget-range of many countries. 

While this hurdle has been negotiated in the western world, some of the world’s hardest hit areas still cannot afford to treat their citizens, to the extent that their health systems have been completely taken and run by NGO’s.  Despite numerous sociological explanations of the crisis in Africa, there is one notable problem that being the intellectual property regime concerned with the patenting of lifesaving pharmaceutical drugs. 

Patents are the legal protection for inventions.  The patenting of an invention grants the owner a 20-year monopoly in the use of that invention; however pharmaceutical patents can be extended for 5 years due to the apparent lengthy process of developing a drug.  Patents have been justified on a number of grounds, predominantly providing justice for the inventor and encouragement of innovation and investment. 

However, on the contrary, pharmaceutical companies retain the patent, not the actual inventor.

And concerning innovation large numbers of the drugs placed on the market are not in fact real inventions, but rather copycats or adaptations of previous drugs.  Additionally the patent regime is said to encourage sharing of information, because once the invention has been patented the specifications are theoretically made available to the public.  However, this actually appears to work conversely as it encourages secrecy as pharmaceutical companies seek to retain a competitive advantage.

PhRMA, the pharmaceutical industry’s trade group, states that “Patents give the proportions give

Research-based pharmaceutical companies the opportunity to recover the high cost of research and clinical trials in the development of new and innovative medicines.”

So, the question lies therefore, in what ways has the patent regime had such a damaging effect concerning the AIDS pandemic in Africa?  Drug patents are like a contract between the drug company and the government in the county where they want to produce and sell a particular medicine, which gives the company full ownership for a certain period of time. 

Thus in creating a monopoly and consequently enabling companies to charge exorbitant prices for necessary life saving drugs, there is no product pricing because there is no competition forcing prices down.

An example lies in the first ARV drug, AZT, which came on the market at $10,000 a year in 1987.

Back in 1978, in the Declaration of Alma Ata, the international community committed to achieving health for all by 2000. Clearly, that goal has not been reached, although most countries have achieved significant health improvements. 

However, health is again at the heart of international debate. The renewed interest in health has some main causes.  In rich and poor countries, voters place pressure on democratic governments to improve health standards, while internationally, the health problems of developing countries provide one focus for discontent at the perceived inequities of globalization.

While richer countries generally experience better health than poorer ones, the market does not automatically deliver health improvements. Major shifts in health status are built on the same foundations as economic growth – new knowledge and technology, exploited through new practices and institutions, new investment, and new labour requirements.

But the process by which health is improved is parallel rather than identical to economic development, needing specific policies and a serious political commitment to the goal of better health. Markets are insufficient providers of universal health care. Can we find significant investment today in the expectation of avoiding much greater costs in the future?  Can effective new partnerships be formed to make a “cross-sectoral” response more than a theoretically desirable dream?

These profound and complex questions are given ever-greater urgency by the knowledge that the threats to our health do not stand still. Ageing populations, increasing drug resistance, and the growing burden of chronic disease in rich and poor countries, all mean that policy-makers must try to solve a problem that is continually mutating.

With the vast majority of the world’s HIV/AIDS cases being in Africa, and more specifically, sub-Saharan Africa, the issue of the affordability of AIDS drugs in these typically poor and developing countries is coming to the fore. Key issues in this debate are whether the drug companies are simply making a profit in the markets that need their product most (and are thus immoral), whether the poorer nations really can’t afford to pay and whether it is at all in the interests of the developing countries to threaten the companies’ intellectual rights and propose to make generic medicines.

Are countries with the biggest AIDS problems held as a captive market and are forced essentially to pay whatever the drug companies’ demand for their products? These poor nations are thus justified in using the threat of generic drugs to force the companies to lower their prices. Especially countries like Africa and Asia, which already have to life poor, and for sure don't have any money left.

Drug companies are by no means omnipotent; they are as much subject to the forces of the free market as any other business. If anything, the nations in southern Africa have the largest market for the drugs in the world, so the drug companies would not be supplying the drugs at the current prices if people were not buying them. The threat of generic drugs only further serves to discourage drug companies from creating new and more effective medicines, as the developing nations have shown them that their patent rights will not be respected.

In 2009, on addressing a political rally in Selibe Phikwe, a few months before the general elections Ian Khama made an announcement that a company that manufactures Anti-Retroviral (ARV) generic drugs was going to open in Selebi-Phikwe and explained that it was going to employ more than 1,000 workers. However, the news later on died, leaving residents in utter curiosity as time proved Ian Khama wrong.

*Thabo Lucas Seleke is Researcher and Scholar, Global Health Policy and Health Systems Strengthening.