Introducing Health Care and Intellectual Property Laws - Essay Example

Putting Patients First: A Position Paper on Health Care and Intellectual Property Laws The of global public health has never been worse. Every year, millions of people from impoverished nations die from preventable diseases. Because of environment and lifestyle, old diseases are developing new strains, more harmful and menacing than the previous. 37,000 die everyday from diseases like pneumonia, HIV/AIDS, tuberculosis, measles, and diarrhea. The tragedy is that even amidst this urgent and compelling need to address this global problem, the right of the people to health care still remains inextricably intertwined with a rigid intellectual property regime. In a knowledge economy where knowledge is considered private property and is thus deserving of full protection under the law, Intellectual Property laws play a fundamental role in ensuring stability and predictability. However, it has been suggested that these laws undermine public health by tending to put the cost of essential medicines far beyond the reach of those who desperately need it most. Intellectual property ownership is a relatively new concept of ownership with staggering social implications. For large pharmaceutical companies investing billions of dollars to continually develop new medicines against diseases, it provides the necessary incentives in the form of patents to provide wider latitude in the development, promotion, and distribution of new drugs to recoup their investments and earn significant revenues for years of research and hard work. It also serves as an incentive for pharmaceutical companies to develop new products for the prevention or treatment of common as well as dreaded diseases. But for low-income countries struggling to provide basic healthcare services and affordable drugs to their citizens, intellectual property is an onerous imposition that threatens to wreck lives in the wake of killer diseases. The law on intellectual property rights allows pharmaceutical companies unrestricted rights to manufacture and distribute medicines at prices they command. Recent free trade agreements have extended extremely generous patent rights to multinational pharmaceutical companies, and have limited access to generic equivalent drugs. Analysis The first level of analysis is to ask whether or not it is actually necessary to prioritize patients' rights, and if the current system has indeed been inadequate in arresting the problem. Without access to the drugs in the treatment of HIV, for example, to combat the spread of the dreaded disease, people from many countries in Africa experiencing an HIV/AIDS pandemic will die in record number. AIDS has killed more than 25 million people since it was first recognized on December 1, 1981, making it one of the most destructive pandemics in recorded history. According to current estimates, HIV is set to infect 90 million people in Africa, providing an enormous market for an anti-HIV medicine. There is currently no vaccine or cure for HIV or AIDS. The only known method of prevention is avoiding exposure to the virus. However, an antiretroviral treatment, known as post-exposure prophylaxis is believed to reduce the risk of infection if begun directly after exposure. Current treatment for HIV infection consists of highly active antiretroviral therapy, or HAART, an expensive procedure that many poor countries in Africa are forced to take. The second level of analysis is whether or not pharmaceutical drug companies can afford to take the pay cuts. It has been argued many times over that these drug companies need the money to innovate and to develop new techniques and new formulations. The evidence, however, militates against this. According to a paper written by Oxfam International: In 2000, for example, the ten biggest companies in the US spent more than twice as much on marketing and administration (34%) than on R&D (14%). Pfizer spent $22.2 billion on dividends and share buybacks in 2003 and the first half of 2004, over twice the amount spent on research. Merck returned $7.3 billion, or 143% of research spending. Moreover, only a small portion of the research and development expenses of pharmaceutical companies have been used to produce medicines for third-world countries. R&D of recent years have been used mainly to "tweak" existing medicines, and to produce medicines for use in the industrialized world - too expensive to be accessed by those in the third world. Oxfam reports that between 1975 and 1999, only 1% of new medicines were for tropical diseases and TB. The third level of analysis asks the question as to whether or not the present legal regime can be read in such a way that health care would be prioritized over profits. This paper submits that the answer is yes. While the law appears tilted in favor of the pharmaceutical companies, there are enough check mechanisms within the law that may be tapped but have not been tapped often enough. In the "DOHA declaration on TRIPS and Public Health" of 2001, states that were members of the World Trade Organization (WTO) guaranteed that when a country is undergoing a public health crisis, it is not bound by its patents commitments. A consensus was reached that the provisions in the WTO having to with patents should be interpreted liberally in favor of the patient, and in favor of granting access to essential medicines. In order to circumvent these commitments, bilateral agreements are being forged by developed countries with lesser developed countries where the requirements for intellectual property law surpass those found in TRIPS. The TRIPS agreement does contain various safeguard mechanisms to protect public health. The two distinct safeguards are (1) parallel importation, and (2) compulsory licensing. By its silence, the TRIPS allows countries to import drugs from another country that is selling it at a lower price. Countries must make domestic legislation in this regard. The US-Singapore Free Trade Agreement, however, is an example of how the US has engaged in scare tactics to pressure developing countries not to pass a parallel important law. Compulsory licensing, on the other hand, permits the government to grant compulsory licenses to particular companies to create generic versions of the drug and arrest a public health crisis. It was found that the introduction of generics competition upon expiry of a patent typically leads to a significant price reduction, often by up to 70 percent. What we can see is that the problem is political, and not legal. The international patents regime does allow for compulsory licensing and parallel importation if domestic legislation allows it. The problem has been the bullying of first world countries and the kowtowing of third world countries. In fact, there have been precedents when this has been done. For example, India, which manufactures cheap medicine because of its access to cheaper raw materials, is one of few countries that sell cheap drugs. Many governments are opting to import their medicines from India and other countries rather than patronize the same medicines offered at higher prices by pharmaceutical companies operating in their respective countries. Imported generic drugs cost 70 per cent cheaper than branded drugs manufactured by patent holders (Intellectual Property Rights, Wikipedia). Some low-income countries in Africa, like Cameroon, Ghana, Mozambique, and Zambia have opted for compulsory licensing to reduce the cost of medicine for HIV/AIDS, a disease that has reached pandemic proportions in these countries. In compulsory licensing, a government compels patent holders to allow the state to use private patent in exchange for negotiated royalties. Even if the government does not exercise this option, compulsory licensing serves as deterrent against possible abuse by patent holders. Since parallel importation and compulsory licensing need legislative approval to become a state policy, some pharmaceutical companies are actually lobbying against the passage of such legislation to protect their interest. Multinational pharmaceutical companies use their vast network of resources to deter countries where they operate from using the declaration to encourage the use of generic drugs and to import medicines from countries that offer them cheaper. Parent countries of some pharmaceutical companies have resorted to other tactics to stop developing countries from pursuing direct importation and compulsory licensing as state policies through trade treaties. Conclusion For sure, intellectual property has sparked a heated debate between patent holders and the market for which they have designed their products. Despite the noise sounded by angry protestors that represent the market, it looks like policy makers are more inclined to listen to patent makers represented by large multinational companies and supported by countries with developed economies, like the United States, EU, and Japan (UNDP Report, 2001). Clearly, there is still much work to be done and there is no such thing as a "one declaration fits all" mechanism to address the conflict between patent and patient, between private profit and public health. There is, without doubt, a need to provide inventors as well as investors with incentives to encourage them to undertake more researches and discover new medicines to provide better healthcare for everyone to improve the quality of life. Nevertheless, it is necessary to examine the tension between intellectual property law and the right of the patient to health care, and to explore the specific ways that the latter cannot be compromised by the former, or vice versa, since an unresolved conflict is detrimental to both. It is also necessary to look at the possible options and solutions to overcome this problem and create an intellectual property regime that will put health over profit and patients over patents. It is important to stress here that patent holders are to be protected just as much as the patients, but this is not to say that there should be no control mechanism to deter man's natural lust for wealth. After all, amassing boundless wealth is a natural consequence of globalization, especially if the commodity for sale is an elixir for well-being and for prolonging human life. References United Nations Development Programme 2001. Compulsory Licensing: Models for State Practice in Developing Countries, Access to Medicine and Compliance with the WTO TRIPS Accord UK Intellectual Property Office 2007. What is Intellectual Property London. Wikipedia, the free encyclopedia. Agreement on Trade-Related Aspects of Intellectual Property Rights. Global Trade Watch, 2006. The World Trade Organisation: An Australian Guide Gowers, Andrew 2006. Gowers Review of Intellectual Property. Her Majesty's Treasury. Hugo H.R. van Hamel. World Trade Organization and Intellectual Property Rights. Peace Palace Library Oxfam International. "Five Questions Drug Companies Don't Want You to Ask." April 2005. ANALYSIS The position paper written was on the tensions between the right to adequate health care and the right of pharmaceutical companies to seek profit. Ultimately, it resolves the issue in favor of the right to adequate health care, clearly and coherently pointing out the arguments to buttress the conclusion made. Northey (1993), in her seminal work "Making sense: A Students' Guide to Research, Writing and Style" enumerated the key things that one must ask oneself before embarking on a research project. She enumerated the following: 1. What is the purpose of this piece of writing 2. Who is it that I am writing for 3. What does the reader expect Those were the guiding principles this author used when writing the paper. The purpose of the writing is to inform the reader on the current crisis on health care and how the international patents regime could be one of the lead causes of the crisis. That is why the paper started out by providing an overview of the subject matter. It discusses the current state of health care and the current international patents regime. This is by way of providing the reader with a glimpse of the controversy at hand. Indeed, as emphasized by Trimmer (2005), it is of utmost importance to be guided by a clear purpose. Secondly, the paper is targeting the thoughtful reader who has some background on social issues. It is also hoped that the reader is someone who could be provoked and prodded into action. The writer has been very conscious of the reader, and has aimed to present his arguments in a manner that is easy to understand, but at the same time does not underestimate the capacity of the reader to grasp key concepts. Third, the writer must ask: "what does the reader expect" At the most basic level, the reader expects to learn more about the subject matter. Clarity is a big step towards professional success (The Economist, 2003.) Hence, the position paper detailed the arguments in a logical fashion. The structure used was easy-to-follow: a clear statement of the argument, evidentiary basis and analysis. In an article retrieved online entitled "Writing a Position Paper", it was stated that a position paper defends one side of an arguable opinion about an issue. The goal is to convince the reader that is this opinion that is the tenable one. In the position paper provided, the writer took pains to explain why his position is reasonable and valid. That is evident all throughout the work. References: The Economist. (2003) "Economist Style Guide." Profile Books. Northey, M. (1993). Making Sense: a student's guide to research, writing, and style (3rd ed.). Toronto: Oxford University Press. Trimmer, J. (2005) "Writing with a Purpose." Houghton Mifflin Company. (14th ed.) "Writing a Position Paper." Available at http://www.sfu.ca/cmns/130d1/WritingaPositionPaper.htm Last retrieved May 13, 2007. Read More