Uganda Needs a Patent Regime That Is Pro Health
by Lydia Mugambe

As the global HIV/AIDS epidemic has turned into a major crisis and as the death toll mounts, one area of human rights- the right to health - has become fiercely contested. In particular the degree to which patents on medicines impede what the United Nations High Commissioner for Human Rights has described as the "human right" of access to essential medicines is receiving close scrutiny. The controversy generated by Attaran and Gillespie's article arguing, "in Africa patents and patent law are not a major barrier to treatment access in and of themselves" is evidence of the intensity of the debate. More importantly, advocacy for the right to health and treatment in particular is pitting developing country interests against those of the rich world and pharmaceutical companies. Advocacy for access to treatments is leading to careful moral and legal scrutiny of patents taken out on medicines, new attempts to define the boundaries to intellectual property, and calls for a re negotiation of the world trade rules.

Central to this debate is the World Trade Organization (WTO)- Trade Related Aspects of Intellectual Property Agreement (TRIPS), which is annex 1C to the WTO convention resulting from the Uruguay Round of multi lateral trade negotiations concluded in 1994, and came into force with the WTO on January 1, 1995. It sets out rules members of the WTO must follow in setting up systems to protect intellectual property rights within their borders specifying, for example, that such rights must be granted to foreign innovators in the same measure as they are to domestics, and that nationals of no particular WTO member country must be favored over those of others.

The interests of the developing world were not in any way a priority at the Uruguay Round that resulted in the WTO and TRIPS. The inclusion of discussions of intellectual property in the Uruguay Round was primarily the instigation of multi national corporations (MNCs) and their allies who had demonstrated an impressive capacity to push their interests in Washington and Geneva. From a profit angle, justification of such lobbying must have been entrenched in the potential for future foreign investment and sales. While on the other hand, developing countries opposed such inclusion of intellectual property under the WTO regime on the basis that such measures reinforce the claims of inventors and producers at the expense of economic and welfare needs of the poor in the developing world. Particularly the protection of holders of rights to patented food and medicines, for example has had the effect of increasing the cost of these items in developing and least developed countries.
The negotiating capacity of developing countries was also skewed due to considerable difference in the specialist knowledge available to them in the conduct of extremely complex discussions. While developed countries were able to mobilize teams composed of top specialists in the various areas dealt with; developing countries lacked the necessary technical support. Indeed the asymmetries within the discussions resulting in and the TRIPS itself are important to note.
However, in view of the fact that many developing countries are already members of the WTO and effectively bound by the TRIPS, (Uganda having signed the WTO Agreement on 1st January 1995) we have to accept for better or worse that it is a done deal and identify best means to wring from it.

In the context of drugs, patent rights over disclosed inventions of goods including medicines, accruing to holders for a minimum of twenty years is the most alarming in the agreement. However in the exceptions and the requirement for exhaustion of intellectual property rights, TRIPS provides flexibilities within which states can maneuver especially in regard to the right to health care. Under TRIPS, compulsory licensing and parallel importing are some of the avenues open for adoption by member states.

Compulsory licensing is permission by the government or a judge for use of a generic drug without the consent of the patent holder of such generic drug. Categorically compulsory licenses apply mainly to generic or common drugs that usually can be substitutes for expensive brand named drugs. On the other hand, parallel importing is the purchasing of proprietary drugs from a third party in another country rather than the local manufacturer or his agent. Varying factors prevailing in different countries result in different prices of the same drug in different countries, parallel importing seeks to exploit this situation. The influence from foreign governments and MNCs at the time of implementing these policies at the national level mystifies the other wise well justified right to health, hindering their implementation.

My view that an open policy against AIDS does not necessarily translate into a reduction of the infection levels notwithstanding, I proudly concede that Uganda has made a name the world over for its open policy against AIDS. That said however such pride remains to be tested by the patent regime that the Uganda Law Reform Commission is cudgeling with.

As the Commission shapes our patent laws to come in line with the TRIPS standards, at the very least the adoption of avenues that unequivocally allow compulsory licensing, parallel importing and other progressive measures for the realization of the right to health should not be sacrificed.