In their Special Communication, Dr Attaran and Mr
Gillespie-White1 argue that patents do not prevent Africans infected with
human immunodeficiency virus from receiving antiretroviral treatment. Their
research shows that most AIDS medications are patented in few African
countries and that only a few AIDS drugs are patented in most African
countries. They also argue that most currently unpatented drugs will remain
unpatented because application deadlines have passed and that lack of
access to treatment does not correlate with patent frequency in African
countries. They conclude that patents are not major barriers to access to
AIDS medication in Africa and that AIDS activists should work to alleviate
poverty rather than attack intellectual property rights.
In the world of politics the carefully qualified conclusions of Attaran and
Gillespie-White are likely to be misrepresented by pharmaceutical lobbyists
claiming that "it has been shown that patents do not matter," with
the aim
of blocking proposed TRIPS agreement amendments that weaken pharmaceutical
patent protection in developing countries. Given the media attention this
study has received, and given the apparent relevance of this study to
current policy debates, it is unfortunate there has not been more public
emphasis on the limited implications of this study regarding the
intellectual property debate more generally. The authors do not claim to
show that patents generally do not make medicines unaffordable for many who
need them. Their conclusions are limited to currently existing
antiretroviral AIDS medications in Africa (with the exception of South
Africa). They admit that patents might impede access to other medications
in Africa and elsewhere; more importantly, they suggest that patents will
likely impede access to new AIDS medications in Africa once the TRIPS
agreement2 gains full force in 2006. Such qualifications must not be
forgotten in policy debates.
With respect to existing antiretroviral medications in Africa, there are
other ways that the authors' conclusions mislead. First, the fact that
South Africa, in particular, is an exception to their rule is an anomaly
that demands further comment since this country is probably home to more
people with human immunodeficiency virus than any other.3 It is surely no
accident that Africa's wealthiest nationie, the one that might have been
most able to produce and supply medicationis also the one where the most
(13 of the 15 studied) drugs are patented. This important exception is
acknowledged by the authors but then ignored without explanation. Other
writers have used this particular case to argue in favor of compulsory
licensing of essential drugs.4
Rather than attributing blame either to patents or to poverty, it is more
plausible to say that both contribute to the lack of health care
availability for the poor. Drugs for AIDS are patented more frequently in
Africa's wealthier countries. Lack of access to medication in Africa might
thus be overdetermined. Where poverty is less extreme, patents become more
lucrative. This provides an alternate explanation of the lack of a negative
correlation between patents and antiretroviral availability in Africa.
Imagine that the poverty problem in Africa's poorest countries had already
been somewhat alleviated via international aid. More patents would have
been sought, drug prices would have increased, and aid money would purchase
fewer drugs than would have been possible if it were not for intellectual
property protection. If this retrospective analysis is correct, then it is
misleading to claim that poverty rather than patents pose barriers to care.
Michael J. Selgelid, PhD
Udo Schuklenk, PhD
Division of Bioethics, Faculty of Health Sciences, University of the
Witwatersrand, Johannesburg, South Africa
1. Attaran A, Gillespie-White L. Do patents for antiretroviral drugs
constrain access to AIDS treatment in Africa? JAMA. 2001;286:1886-1892.
2. Harmon A. Suddenly, "idea wars" take on a new global urgency.
New York
Times. November 11, 2001. Available at:
http://www.nytimes.com/2001/11/11/business/11PROP.html?ex=
1006548716. Accessed January 31, 2002.
3. Whiteside A, Sunter C. AIDS: The Challenge for South Africa. Cape Town:
Human & Rousseau Ltd; 2000:xi.
4. Schuklenk U, Ashcroft RA. Access to essential drugs in developing
countries: conflicts between ethical and economic imperatives. J Med Phil.
In press.