As pointed out by several experts, developing countries have not always made full use of the options in the TRIPS Agreement to design patent laws that best correspond to their own needs and development objectives. The report of the UK Commission on Intellectual Property Rights provides a very clear overview of the problem and recommends what might best be done about it.
Many developing countries still have a patent law based on and shaped by that of a former colonial power as part of their legacy. In addition, developing countries often get "technical assistance" in creating, amending or operating their patent systems, for example via collaborative programmes with patent offices in developed countries, or via international organisations such as WIPO. The influence of industrialised country thinking on patents can be either explicit (suggestions for amendment to the patent law) or implicit (when, for example, a patent office examiner from a developing country is trained in a cooperation programme with a developed country patent office, they will inevitably be influenced by developed country practices on how to approach patent problems). Industrialised countries also put pressure on developing countries to make patent laws that favour patent holders such as Big Pharma. Unfortunately Western patent offices and WIPO do not currently provide technical assistance to implement TRIPS in a pro-public health way, following the Doha Declaration.
MSF volunteers work to increase awareness on HIV/AIDS in a slum in Nairobi, Kenya.
Photo: © Dieter Telemans
Ongoing negotiations within WIPO on a Substantive Patent Law Treaty (SPLT) may have the effect of closing the door to much of the flexibility left to WTO Members on patentability. These talks aim at harmonizing national/regional patent laws much further than the TRIPS Agreement did, so that a patent could not be granted in one country but rejected in another, as is currently the case. This trend could further hamper access to medicines, as universal patent requirements are very likely to be designed according to standards used in developed countries.
This chapter examines some of the criteria used when the patentability of a product is considered, and discusses some of the practicalities of challenging patents. There is a huge number of considerations that must be borne in mind when looking at these questions - not least the limited resources available to developing countries.
South Africa's dynamic AIDS activist movement has been instrumental in shaping public opinion regarding pharmaceutical patents and other issues around access to essential medicines. A protestor on the stairs of a church on February 14th 2003, when over 10,000 people marched through Cape Town, this time calling on the South African government to introduce a treatment plan for people living with HIV/AIDS.
Photo: © Eric Miller