Date:  21 July 2011

On behalf of the Thai Network of People Living with HIV & AIDS, pharmaceutical academics and civil society organisations working on access to medicines for all in Thailand, we wish to raise our grave concerns regarding the agreement between the Medicine Patent Pool and Gilead Sciences, Inc.

On July 12, 2011 Gilead Sciences, Inc. announced a great success in their contribution to the promotion of access to medicines by signing an agreement on licensing AIDS drugs to the Medicine Patent Pool.  However, in reality this announcement is a bad news for millions of people living with HIV in the low and middle income countries excluded from the benefits of the Patent Pool. Such a divisive agreement contradicts the original intent of the Patent Pool, as a newly created mechanism to overcome IP barriers and promote access to essential medicines for all.

Although the Gilead agreement allows medicines produced under its license to be shipped to excluded countries if they decide to use a public health safeguard, known as compulsory licensing, there have been very few examples of developing countries being able to use this public health safeguard successfully. It required strong political will and massive public pressure to ensure that governments use compulsory licensing in the face of pressure and retaliation from the multinational pharmaceutical industry and its governments. Thailand and Brazil are recent examples of countries that faced massive backlash after issuing compulsory licenses on HIV medicines. However, even if countries do issue a compulsory license, they get caught in using the August 30th decision ` something that history again has shown does not work.

Whether or not such provisions are in the Patent Pool license, it makes no difference ` eventually huge numbers of people remain without access to affordable essential medicines. Instead of pushing low and middle income
countries to take the difficult option, Gilead should not limit the countries that can benefit from their licenses; unless they have a hidden agenda to weaken local production capacity and impede competitiveness of generic medicines.

As in Thailand, where there is no patent on TDF, many countries are also trying to impose strict patent standards and patents on TDF have been rejected in some countries or don`t exist in many countries. But Gilead has placed conditions before the generic companies can supply to those countries where patent is rejected or does not exist `so the license made it more difficult for excluded countries to get generic supply even if patent is rejected in their country.

Regarding the agreement, it states that Gilead agrees to allow generic manufacturers to exit the agreement for any of the drugs if they fail to get a patent due to a legal challenge. This is not something we should be grateful to Gilead for as, by law, other drug companies can produce and sell their generics in the market if the originals are off-patent or fail to prove their patentability.

In addition, Gilead claims that the agreement with the Medicines Patent Pool has been made public to reflect the transparency of the process. However, the company did not provide reasons or the criteria used for selecting which countries could benefit from their licenses. For example, Thailand is included in the tenofovir license, even though tenofovir is not patented in Thailand, but Thailand is excluded from licenses for cobicistat and elvitegravir that may have patents in Thailand. What were the reasons for the Medicines Patent Pool to accept exclusion of Thailand for the new drugs` Is the primary objective of the Medicines Patent Pool still to be a new mechanism to address the particular public health needs of developing countries`

Giant multinational drug companies are increasingly taking over the Indian generic-drug industry - since 2008 multinational pharmaceutical corporations have already taken over six drug companies in India. India is recognised as the supplier of low-cost generic drugs to the world. To confine manufacturing to only India and to limit supply sources of active pharmaceutical ingredients (API) in the agreement is a strategy to control the Indian pharmaceutical industry and undermine its capacity to supply affordable generic medicines to other developing countries. The control of API also makes it difficult for manufacturing to take place in other countries.
Generic competition is the most effective mechanism to make significant reduction in drug prices.  The licenses given to the Medicines Patent Pool with such restriction will jeopardise the competition of generic medicines
by selectively giving license to Indian manufacturers only and limiting countries who can buy the medicines from India. Therefore, the drug prices cannot be reduced as much as they should be, and this will further limit the
number of people who can access to these medicines.

By selectively giving licenses to a limited number of countries, a divide-and-conquer tactic has been applied to weaken the solidarity of patient and civil society groups across the global south in fighting for access to affordable medicines for all and by isolating the countries who stood up to challenge the power of giant pharmaceutical industry.

In the end, the multinational pharmaceutical industry still places its own economic benefit before public health.  Licenses given to the Patent Pool with such restrictions are not truly an effective solution.  Similar to
philanthropic programs in the past, the giant drug company makes use of the contribution to the Patent Pool to present a good image to the public rather than to address limited access to lifesaving medicines for all in the long
term.


Sincerely yours,
The Thai Network of People living with HIV/AIDS (TNP+)
Thai NGO Coalition on AIDS
Foundation for AIDS Rights
AIDS ACCESS Foundation
Drug Study Group

Keywords: Thai / Gilead / Patent Pool