Intellectual property rights cannot supersede right to life
– Requesting a compulsory license for the production of Fuzeon, an anti-retroviral drug
In 2004, La Roche, a multi-national pharmaceutical corporation, acquired the license to launch Fuzeon, an anti-retroviral product. However, South Korean people with HIV/AIDS have never seen this drug in the last 4 years. This was due to a strong ‘will’ of La Roche requesting the South Korean Government accept the price of 22 million KRW (roughly 22,000 USD) per year. The company has been withholding the distribution of the drug for the last 4 years. The exclusive right of patent protection, owned by La Roche, guarantees that the company’s murderous will is observed in South Korea.
The South Korean Ministry of Health, Welfare, and Family promised the AIDS patients that they will make use of all formal and informal means to pressure La Roche to provide Fuzeon to the South Korean market. The unfortunate truth is that there is no such means the Government can employ to counter pharmaceutical companies’ murders by patents. In the current system where the exclusive patent right equals the ‘license to kill,’ the only tool governments have is the compulsory licensing of the patent. This is why even the World Trade Organization (WTO) acknowledges the compulsory licensing as a very important part of the international intellectual property agreement for ensuring patients’ access to life-saving medicines.
The TRIPS Agreement, the intellectual property agreement of the WTO, specifies that member countries can compulsorily license the use of patents to protect public health and nutrition and to facilitate the public interest in extremely important areas of socio-economic and technological advancement. Articles 106 of the South Korean patent law also specifies that to be used in a national emergency such as a war and for the non-commercial use of the patent for the public interest, the government or the third party can be licensed to use the patent. The article 107 of the South Korean patent law indicates when the use of the patent is particularly necessary for the ‘public interest,’ a compulsory license can be granted.
Despite this, the South Korean Government has kept an extremely passive position as to the issue of compulsory licenses due to the fear of trade disputes. A well-known example is the rejection of the compulsory license of Glivec, an anti-leukemic drug, in 2002. However, the Doha Declaration on the TRIPS Agreement and Public Health, adopted in November 2001, clearly indicated that (1) “the TRIPS Agreement does not and should not prevent Members from taking measures to protect public health” and that (2) “the Agreement can and should be interpreted and implemented in a manner supportive of WTO Members’ right to protect public health and, in particular, to promote access to medicines for all.”
Despite the existence of the international declaration that supports the compulsory license, if the South Korean Government does not grant a compulsory license for a clearly non-working life-saving patent, it is only evading its responsibility for the protection of its citizens’ rights to health as well as life.
The compulsory license is not an impudent practice that aims to destroy intellectual property rights and patent system at once. The institution of patent protection originated not only to protect the private interest of the patent holder but also to promote public interest by technological development based on the disclosure of innovations. When the patent right threatens the public welfare against its fundamental objective, it is only natural to use compulsory license to regulate it.
Multinational pharmaceutical companies and their astronomical drug prices are harmful not only to individual patients’ health and welfare but to finances of nation-state. For example, the US congressional Budget Office estimates that the medical cost will occupy 25% of GDP in 2025 if it keeps the same rate of growth as of now. The Bush administration’s secretary of Health and Human Services said in a speech that if the medical cost keeps rising at the current rate, an enormous national financial crisis, surpassing the subprime mortgage crisis, will eventually develop. The main component of the rising medical cost is tremendous amount of expenses paid to pharmaceutical companies for new drugs and medical devices. The pharmaceutical cost occupies 30% of the South Korean medical expenditure! . Accordingly the MOH has initiated the Positive List System since 2006.
The basis of the Positive List System lies at the negotiation between pharmaceutical companies and the South Korean Government to determine prices of new drugs. However, pharmaceutical companies retain the exclusive capacity to produce and provide drugs. Therefore, the prices are determined at the rate where pharmaceutical companies would not withhold their drugs. All South Korean Government can do is to accept the price pharmaceutical companies want, the price that is practically unaffordable to patients. Meanwhile, patients are dying despite the existence of drugs that can save their lives. The South Korean Government is simply ignoring this tragedy.
We cannot and should not look away from preventable deaths of patients any more. The patent right cannot supersede the right to lives. Therefore, we Korea HIV/AIDS Network of Solidarity and Intellectual Property Left request a compulsory license of Fuzeon. This is to declare to the world that the right to lives is of utmost importance, much more than intellectual property rights. The South Korean Government should protect this deserved truth, by granting the compulsory license.
December 23rd, 2008
2008-12-22
