Compulsory Licenses and Right to Health Litigation
Crucial right of countries for expanding access to medicines
Countries may exercise their right to issue compulsory licenses to expand access to medicines that are still protected by patents. A compulsory license is a special mechanism that authorizes a government to introduce generic competition for a patented product in exchange for royalty payments to the patent holder. Various countries have issued compulsory licenses on to expand patient access to medicines, ranging from HIV to cancer treatments. Unfortunately, due to various international and domestic pressures, this right is under-utilized by countries whose citizens would benefit.
- Post-TRIPS Examples of Compulsory Licensing Worldwide (also available in Spanish here)
Litigating the right to health
Human rights law and its relationship to intellectual property protection and access
More than 100 countries have incorporated a right to health into their constitutions, and 160 have acceded to this right through their international treaty obligations. And, in the last fifteen years, domestic courts have gone far to safeguard this right: courts have not only granted plaintiffs access to specific medications, but also commanded governments to make particular medications available to all citizens. More recently, domestic courts have also displayed a growing willingness to use human rights laws to reinterpret and even strike down IP laws that impede access to medications.
A worldwide campaign to expand access to a vital HIV treatment
On November 10, 2011, public health groups in a dozen countries launched a global campaign to challenge Abbott Laboratories’ monopolistic hold on Kaletra (lopinavir+ritonavir), a critical HIV/AIDS medicine. The goal was to spur competition by generic drugmakers and thereby lower the medicine’s price, as well as to free up its components for new and improved combination treatments. The campaign comprises an unprecedented global effort to fight Big Pharma’s political power and improve access to lifesaving medicines.
Atazanavir Campaign in Peru
A campaign to obtain a compulsory license on an important and expensive HIV medication in Peru
On November 17, 2014, public health activists in Peru sent a letter to the Peruvian president, Ollanta Humala, and the Peruvian Ministry of Health requesting that the president issue a compulsory license on atazanavir, an important, second-line HIV drug on which Bristol-Myers Squibb currently holds patents in Peru. The grant of a compulsory license on this medication would save the Peruvian government 26 million nuevo soles (roughly USD $9 million) in 2015 alone. Furthermore, the grant of this license could save Peru about USD $44 million over the course of the next few years, until Bristol-Myers Squibb’s expires in 2019.
Nevertheless, a recent article in Peru’s La Republica newspaper indicates that Minister of Health, Aníbal Velásquez, has actually signed a decree declaring atazanavir to be in the public interest and issuing a compulsory license on the patents associated with atazanavir. The article reported that this decree has languished on the Minister’s desk for two months because Peru’s Ministry of Economy as well as Ministry of Foreign Commerce and Tourism have opposed the compulsory license.
Civil society groups continue to oppose the position of the Ministries of Economy and Commerce, and support the issuance of a compulsory license on atazanavir.
“Acting in concert around the world, we will fight pharmaceutical monopoly abuses”.–Luz Marina Umbasia, attorney for Colombian treatment groups
Peruvian civil society groups call on President Humala to issue a compulsory license on atazanavir, an important, second-line HIV medicine.