Had Novartis won, it would have set a precedent for patenting of other medicines in India, delaying their reaching the poor
The battle for affordable, life-saving medicines for poor countries was once waged on first-world city streets with banners and placards. For some years now, however, it has been a long-hard legal slog in offices and courtrooms.
A decade or more ago, it was almost entirely about access to Aids drugs. The companies who made them at prices too high for all but citizens of the rich world were shamed and left on the back foot by campaigners in the US and Europe.
The activists won some famous victories, breaking the patent stranglehold of the big companies and enabling the sale of cheap generic copies. Millions of people with HIV are alive and leading normal lives in poor countries as a result.
The multinational drug companies, however, have been working hard to prevent further erosion of their profits by generic, copycat manufacturers whom they once openly called pirates.
The companies, with support from the US and European governments which want a profitable drug industry, have worked to tighten patent protection for new medicines through national laws and trade agreements. India has been the main focus in its historical role as the pharmacy of the developing world.
Under the World Trade Organisation's trade-related intellectual property rights (Trips) rules, India agreed to bring in patents for drugs in 2005. Drugs without patent protection before that date can still be copied and sold cheaply to developing countries by generics companies.
Novartis began seeking patent protection for its cancer drug Glivec as soon as the law came into force, but as the drug was already on the market the Swiss company could not make a standard application. Instead, it sought a patent for a slightly altered version, which it said made the drug easier to absorb. It argued that this was innovation under Indian law and deserving of a patent.
The stakes were high. Glivec costs around £1700 a month. Indian generic copies cost around £115.
Campaigners, already concerned that the Indian patent law would delay important new medicines reaching the poor, could see that if Novartis won its legal case, the "evergreening" of drugs by other companies would become routine. Patents usually expire after 20 years, meaning it could be decades more before prices would drop.
"Had the Novartis case been successful, it definitely would have extended massively the ability to patent other medicines within India," said Jennifer Cohn, the medical director for Médecins Sans Frontières' access campaign.
It is an important victory, say the campaigners, but they still feel embattled. New classes of HIV drugs are being patented now in India and will not reach Africa for many years as a result, Cohn said. The same is true of new tuberculosis and hepatitis C drugs.
Campaigners also worry about trade agreements such as the Trans-Pacific Partnership, which is being negotiated between Australia, Canada, the US, Malaysia, Chile, Mexico, Peru, Vietnam and others, and require stringent patent protection.
The companies and their supporters, however, argue strongly that without the financial reward that long-lasting patents offer, they will not have incentives to develop new medicines. They also threaten to boycott countries that will not allow them a monopoly on their own drugs.
No one thinks there are any simple solutions.
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