HEALTH: International (MRB Nov 2001): Cost of AIDS drugs may fade as political issue after deal at WTO.

Aid agencies dealing with the AIDS pandemic have welcomed the declaration on patent rights adopted at the Doha World Trade Organisation meeting this month. Others say the deal may in the future still allow challenges from the pharmaceutical majors for patent infringements since the formal wording of the 'trade-related aspects of intellectual property rights' (TRIPS) agreement has not been altered. But the deal will immediately make the issue of costs of treatment drugs less explosive.

In addition the deal may strengthen the argument of those groups, including the Treatment Action Campaign, who are challenging the SA government in cour for its rejection of a public programme of anti-retroviral (ARV) treatment, citing costs. This is despite a recent deal with GlaxoSmithKline enabling three key anti-AIDS drugs to be produced in SA for the public sector at about half the current price.

The WTO declaration makes a clear political statement that public health concerns must override commercial interests. The aid agencies said they would have liked to see stronger wording while the pharmaceuticals majors wanted the language restricted to AIDS drugs. Instead the agreement encompasses any drugs relating to mass diseases.

There is a wider concern, since Brazil and India have used the TRIPS and health issues quite astutely to push for concessions on other fronts, among them agricultural subsidies and textile access. Pharma representatives have unsuccessfully tried to deflect attention to Brazil's tight regulations on the use of patents - these enable Brazilian companies to take over any foreign patent in any product if it is not used by the patent holder in a specified period of time.

SA, meanwhile, has been holding back on pushing the patent envelope because of concerns that this will further damage the investment climate and alienate foreign investors, and not because of fears of being strong-armed by pharmaceutical manufacturers.

The declaration on TRIPS and public health gives countries the right to grant compulsory licenses, overriding patents, and the freedom to determine the grounds upon which such licenses are granted, the agencies - Medecins Sans Frontieres, Oxfam, Third World Network, Consumer Project on Technology, Consumers International, Health Action International and The Network - said in a joint statement.

The declaration acknowledged that these options are not limited to emergency situations. However, if countries do declare an emergency, they can issue compulsory licenses without prior negotiation with the patent owner. It is countries themselves that determine what constitutes an emergency situation, and in SA President Thabo Mbeki has explicitly ruled it out.