The rules of the game all changed when India designed a patent law that was very restrictive on which medical inventions should be patented. A decision taken in the interest of public health, as fewer patents mean increased access to affordable medicines. Generic medicines. Those that countries in the developing world have come to count on. The country supplies a vast proportion of affordable HIV/AIDS and Tuberculosis medications and is the second leading provider of medicines distributed by UNICEF. India is literally the “pharmacy of the developing world”.
Nevertheless, one of the most significant trends in pharmaceutical patenting today is the move towards harmonising patent laws across different countries and continents. For several decades now, the pharmaceutical industry has been pushing for the stricter patent standards of Europe and North America to be extended to the developing world. This to a large extent has been done through the World Trade Organization’s TRIPS Agreement.
Now things are coming to a head. The case — Novartis versus the Indian Government — is in its final stages, with final arguments pushed back until 11 September. The case is complicated. Much more complicated than the layman’s arguement of “if India can make the drugs cheaper why can’t Novartis?”. The second pill is cheap to make, the first costs millions if not billions in R&D.
MSF are the leading voice in advocacy on this situation, and are very vocal on demanding acces to essential medcines for all. With lives at stake versus Big Pharma profits, it’s hard to come down on the side of Novartis. Competition among different producers is the tried and tested way to bring prices down. And, in this case, this can only happen when the patent doesn’t intrude. But let’s not be mistaken; India does have a patent law, and for the most part it protects innovation. It’s just that the bar is set a lot higher than in some other countries. Big Pharma has a trick — termed “evergreening” — that it uses to keep patents fresh on its money-making drugs. Minor improvements to old medicines make sure the company that produced it stays exclusively rich.
We’ll see which side the Indian Supreme Court comes down on. Defending and protecting intellectual property is important for innovation. But health should not be commerce. Whatever the decision the impacts will not only be measured in cents and dollars — but also lives. Almost makes the Apple vs Samsung legal battle seem almost trivial.
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