Avian Flu, Health vs. IP Protection

Over at O’Reilly Radar, a question came up as to whether Roche’s patent on Tamiflu should be respected if, in the event of a pandemic, people were dying on a large scale due to an inability for Roche to produce Tamiflu in sufficient quantities.

James Love of cptech.org recently pointed out that the WTO made an exception for a situation like this, allowing importation of medicines from foreign countries in violation of local patent licenses in the case of an emergency, in a 30 August 2003 decision:

Your country would benefit from importing generic medicines produced under a compulsory license, in order to build up adequate stockpiles or to obtain needed medicines in the event of a crisis.

However, many developed-world countries have explicitly made a commitment never to use this limited TRIPS waiver, namely the following:

Australia, Austria, Belgium, Canada, Denmark, Finland, France, Germany, Greece, Iceland, Ireland, Italy, Japan, Luxembourg, Netherlands, New Zealand, Norway, Portugal, Spain, Sweden, Switzerland, United Kingdom and the US.

Another 10 countries about to join the EU said they would only use the system to import in national emergencies or other circumstances of extreme urgency, and would not import once they had joined the EU: Czech Republic, Cyprus, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Slovak Republic and Slovenia.

So there you have it; the trade representatives for many developed-world countries took some kind of ‘strong IP’ high moral stand, and gave up this ability. I’ll bet national health authorities are, right now, wandering government halls around the world, looking for trade representative asses to kick…

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  1. Posted October 23, 2005 at 02:54 | Permalink
  2. Posted October 23, 2005 at 12:39 | Permalink

    Well … I think you are making a bit much of this issue. I would think the rationale for this is that there is sufficient manufacturing capacity within the European Union to provide drugs to deal with just about any contingency.

    If there’s a really big emergency, the treaty won’t mean much anyway.

  3. Posted October 24, 2005 at 05:39 | Permalink

    Antoin — there is definitely not enough manufacturing capacity currently for Tamiflu under Roche’s control, is what I’m reading pretty much everywhere.

  4. Posted October 24, 2005 at 19:45 | Permalink

    Here’s a few URLs I came across this morning that are relevant, btw:

    Roche is planning to step up production — ‘takes 12 months to make a dose’, ‘outside companies would need up to three years to set up production as well as gain the capacity and know-how’ they claim. They’re also saying that it would take 2 years for them to set up a US production plant.

    Also well worth reading: Why a central stockpile of Tamiflu is unlikely to protect us.

    I think the most likely outcome is that Roche will permit production of Tamiflu by third-party generic makers, under a negotiated license, rather than the patent-infringement case. But in my opinion it’s important for governments to have this kind of weapon in their war-chest — just in case.

    Don’t forget, Roche have a bad history in this regard.