Features

Patently absurd

Law | Drug companies and their patents are not the enemies in the war against AIDS

Issue: "Too close to call," Oct. 28, 2006

Now that the HIV/AIDS pandemic has killed over 25 million people, with 40 million more still living with it, the search for guilty parties intensifies. While individual responsibility in most cases of getting and transmitting HIV/AIDS cannot be denied, the big culprits, according to a legion of activists, are patent regulation, "big drug companies," and international trade agreements.

Africa in particular has become the test case. While sub-Saharan Africa has only slightly more than 10 percent of the world's population, it claims over two-thirds of the world's HIV infections, and 77 percent of the female infections. Some activists say that patents held by large pharmaceutical companies are the primary obstacles to widespread treatment of HIV/AIDS in Africa.

The facts do not support that charge. The most effective regimens for treating HIV/AIDS are unpatented in 52 of 53 sub-Saharan African countries.

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Most HIV/AIDS treatments are voluntarily unpatented in the region and are likely to remain permanently unpatented because the one-year grace period under which companies may still file patents has long since lapsed.

The World Trade Organization is the international body governing global trade for its member states, and the TRIPS Agreement is the international treaty governing intellectual property. The WTO and TRIPS have faced violent opposition since their inception because TRIPS solidifies patent protection worldwide, but it provides numerous exceptions to protect public health. The signatories of the TRIPS Agreement unanimously agreed that patent protection must be subject to social welfare.

Some activists argue that a decreased emphasis on patents will automatically result in increased access to drugs, but without patents it would be impossible for companies and nations to perform expensive research and development. The basic rule is: Decrease the number of patents, decrease the number of drugs. Sometimes an increase in patents can lead to higher drug prices, but in Africa, since the establishment of a uniform patent regime in TRIPS, drug prices are lower.

Pharmaceutical companies are sometimes demonized, but they have little financial incentive to exploit sub-Saharan Africa. Yes, 65 percent of the HIV/AIDS carriers are there, but from a financial perspective the region comprises only 0.5 percent of the HIV/AIDS world market share. Already, with the help of drug companies and other charitable organizations, drug prices are up to 90 percent lower in some African nations than in the United States.

Overall, critics fighting against big drug companies, patents, and international treaties are wasting their energy, and their misdirected claims divert millions of dollars away from a cure.

-Stewart Rutledge is a University of Mississippi law student

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