A recent report “Making Global Trade Work for People” commissioned and published in March 2003 by United Nation Development Programme (UNDP), on reviewing the TRIPS provisions in the context of developing countries, says –"Countries at low levels of human and technological capability cannot benefit significantly from TRIPS". “The relevance of TRIPS is highly questionable for large parts of the developing world”. It concludes: “Member nations need to begin dialogues to replace TRIPS”. The report reflects the actual experience of TRIPS working and the severe adverse impact on matters of public health in developing countries.
Under the pretext of TRIPS requirements, developing nations are induced or compelled to adopt and enforce patent laws, which further strengthen and prolong the patent monopoly, and contain ineffective compulsory licence/parallel import provisions. Such laws are designed to obstruct or delay any production/imports of competing generic versions of patented drugs. Transnational Pharma Corporations holding more than 80% of pharma patents in most countries, exploit this situation. The devastation resulting from such exploitation has been noted even by the US Congress and the US Senate.
The gravity of the health problem – US Congress ‘findings’
The gravity of the health problem from actual working of TRIPS in the developing countries, is brought out from the 'Findings' of the US Congress recorded in US Law - 22 U.S.C 6802: -
a) HIV/AIDS will soon become the worst epidemic of infectious disease in recorded history, eclipsing both the bubonic plague of the 1300's and the influenza epidemic of 1918-1919, which killed more than 20,000,000 people worldwide.
b) More than 34,300,000 people in the world today are living with HIV/AIDS, - 95 percent living in the developing world.
c) Worldwide, there have already been an estimated 18,800,000 deaths, of which more than 80 percent occurred in sub-Saharan Africa.
d) Among children age 14 and under, worldwide: -
-- More than 3,800,000 have died from AIDS;
-- more than 1,300,000 are living with the disease;
-- in 1 year alone--1999--an estimated 620,000 became infected, - 90 percent were babies born to HIV-positive women.
e) By the end of 1999, 13,200,000 children have lost at least one parent to AIDS, including 12,100,000 children in sub-Saharan Africa, and are thus considered AIDS orphans.
As per WHO Reports, every day about 7000 to 8000 persons - many of them innocent women and children - die of AIDS/HIV, the world over. Similar information and data are noted and recorded in WHO Reports and in 'Findings' by US Congress in other special Acts in respect of Malaria and T.B.
Profiteering – limitless – ruthless – US Senate ‘findings’
How such laws are abused, and the extent of profiteering blatantly practised by TNCs can be seen from the 'Findings' recorded by the US Senate in Bill S. 812 - 'Greater Access to Affordable Pharmaceuticals Act of 2002': -
'(P)rescription drug costs are increasing at an alarming rate and are a major worry of American families and senior citizens';
'(T)he use of generic pharmaceuticals for brand-name pharmaceuticals could save purchasers of pharmaceuticals between $8,000,000,000 and $10,000,000,000 each year'.
Problems that civilized world cannot ignore
This actual experience only goes to show that only a microscopic minority – less than 0.1% of the population – in India and most countries can afford to pay such prices. What good is TRIPS protection for R & D for modern drugs – if these benefit only a favoured few? Can the other 99.9% be left to their fate, to survive and wait for 20 long years till the end of the patent term?
The solution for the problem is also furnished by US Senate as ‘Findings’: -
'(E)nhancing competition between generic drug manufacturers and brand-name manufacturers can significantly reduce prescription drug costs for American families'. (This is equally true for non-Americans).
'(T)he pharmaceutical market has become increasingly competitive during the last decade because of the increasing availability and accessibility of generic pharmaceuticals, but competition must be further stimulated and strengthened'.
To stimulate generic competition, the UK Government Commission on IPR, in its official Report published in Sept. 2002, prescribes -
“Developing countries should establish workable laws and procedures to allow them to use compulsory licensing. They should also make similar provisions for what is called ‘government use’.”
-- The author is a noted patent attorney