“A small step for man but a big step for mankind”

by Melanie Schuster

How Brazil breaks drug patent “Graca de deus” Thank God - Senora Carolina is not too familiar with common politics but the news of Brazil breaking the patent of the AIDS drug brings a smile to the old lady’s face. Senora Carolina is a resident of one of the poor outskirts of Sao Paolo. She has worked all her life and raised six children. Two of them carry the fatal Human Immunodeficiency Virus, not an uncommon disease considering the UNICEF statistic of 2005 estimates a HIV rate of 0,5% with corresponding numbers of 620,000 infected throughout brazil. Approximately one third of all HIV infected Latin Americans live in Brazil.

The Brazilian fight against HIV is cited as a model for other developing countries. With an outstanding effort, Brazil lanced their unique programme to battle the incurable disease. This development roots back to the year 1986 when the Brazilian Ministry of Health introduced their national STD/AIDS programme; setting emphasis on prevention and information. The use of condoms is, despite the domination of the Catholic Church, in comparison to many African countries, widely accepted.

However, the main target of the government was to provide a 100% free of charge treatment and medication for all Brazilian HIV/AIDS victims. In the year 1997 Brazil achieved the unexpected and granted throughout the population access to the expensive treatment. Today counting on figures of the National STD/AIDS programme there are currently more than 180,000 Brazilians with free access to retroviral medication. It seems like David versus Goliath. The original
imported drug medication produced by big American and European companies like Abbot, Merck and Pfizer is sold to prices which are unaffordable especially to developing countries and countries on the verge of industrialization. Brazil knew that the battle against AIDS could not be won with the help of the pharmaceutical industries.

In the year 1997, in accordance with the WHO, a law was released requiring that foreign products are manufactured within Brazil within three years after receiving a patent. In case that a foreign company does not comply, Brazil can authorize a local company to produce the drug without the consent of the patent owner. This law became known under the term of compulsory licensing. In addition, another law authorizes the import of the lowest priced international generic drug in case of special circumstances. To prevent abuse of these laws they can only be used in the situation of a health emergency or if the pharmaceutical industry abuses pricing.

These measures had to be taken to be able to continue with the STD/AIDS programme. For the pharmaceutical industries these laws are the greatest possible threat as the closure of these markets is the equivalent with the loss of a shear uncountable sum of money. The companies claim that these laws disrespect the World Trade Organization's Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs).

But can human lives be measured by money or intellectual property?

Under the huge pressure of the pharmaceutical lobby, the US filed a claim against Brazil that it was taking economical advantage of the situation by producing their own Anti Retroviral Drugs. In addition Brazil was set on the “watchlist 301” which involves unilateral economical sanctions.

Brazil should not to be underestimated. Their rising economical power and the growing importance of their market especially to the US, gave the country the possibility to withhold the threats. Additionally, support from many international organisations also helped Brazil to maintain its objectives.

In 2001, the WTO’s 4th Ministerial Conference in Qatar, affirmed in the Doha Declaration the possibility for TRIPS members to provide general access to necessary drugs, “The TRIPS Agreement does not and should not prevent WTO members’ governments from taking measures to protect public health.” The same year the access to AIDS drugs was declared as a human right by the United Nations Commisson on Human Rights. Numerous talks with the pharmaceutical industry since then could not lead a way to a general consent.

In the beginning of May 2007, talks with the pharmaceutical giant Merck didn’t convince the company to provide Brazil with drugs with the same discount that was granted to Thailand. Therefore the Brazilian government authorised bypassing the patent on the non-nucleoside reverse transcriptase inhibitor (NNRTI) produced by Merck. Brazil saw no other possibility but to import a cheaper, generic Indianmade version of the patented drug. Although the company now claims that Brazil’s decision could discourage pharmaceutical firms from investing in treatments for illnesses prevalent in the developing world, it shows that a free access to drugs can be possible even for countries having less financial power.

The action taken by Brazil was seen as a milestone in the fight against the disease and greatly approved by many HIV/AIDS Organisations.

And of course Senora Carolina is happy that the Brazilian government maintains the free access and gives her children the chance to live their lives.