Combining health and social protection measures to reach the ultra ...

InnovationUsing the power ofintellectual property tostrengthen equitable accessArticle by Anatole KrattigerOver the last decade, many countries around the worldrevised their laws related to intellectual property (IP).These changes were driven by a true “explosion of IPlegislation at the international level” 1 : in the last 15 years tennew IP specific treaties were concluded 2 , and nearly everyinternational treaty today includes IP clauses.Because of its feared impact on low- and middle-incomecountries, the most discussed treaty in the context of healthresearch and development has been the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).Whether or not and to what extent TRIPS will impact thepricing and availability of health products are certainlylegitimate concerns. But access to health products andservices depends on many factors. One key factor is thesuccessful innovation of new technologies, either as newdrugs, vaccines, or services, or as adaptations of existingproducts to the contexts and frameworks of low- and middleincomecountries.Indeed, innovation management is a complex endeavour.Government and institutional leaders need to address a widerange of issues, ranging from policy choices toimplementation strategies. Some of the most importantelements to consider in this context are:1. Intellectual property is just one of several factors thatdetermine innovation in health research and development(R&D).2. When assessing the impact of legislative and policychoices, intellectual property must be considered in thecontext of other competencies:a. Supportive R&D policyb. National health programmes that sustain domesticmarkets, including distribution systems in both thepublic and private sectorsc. High-quality manufacturing standards for drugs andvaccinesd. Effective regulatory systemse. Mechanisms to facilitating trade in health products andtechnologies3. Mechanisms and best practices to harness the global IPregime in a manner that promotes both private and publicinterests, including the improvement of poor populations’access to health products.As a pre-requisite for countries to participate in the globalmarketplace and benefit from emerging technologies, stronginstitutional IP capabilities are needed. This should becoupled with careful consideration of the tremendous latitudeprovided by TRIPS in terms of national implementation.These should be coupled with national policies and practicesthat support the public sector’s endeavours to meet the needsof the poor. These need not be compulsory licensing that maybring advantages in the short term. Such approaches areunlikely to be effective in the medium- to long-term inenabling – let alone sustaining – collaborative efforts betweenthe public and private sectors.It is not argued here that the IP rights system is perfect. Itis a compromise and an imperfect solution 3 . IP rights systemsrepresent the search for balance between making allknowledge freely available within the public domain andgranting ownership of valuable discoveries to the inventors.Historically, we have seen that this balance encouragesinvestment – and reinvestment – in innovation, primarily bythe private sector. Unfortunately, this innovation is tooinfrequently directed towards the needs of the poor. Thefailure is not in the IP rights system per se, but in part due tothe fact that insufficient attention has been paid by the publicsector to managing intellectual property. This lack of focusedattention must be corrected.Legislative frameworksThe IP legislative explosion mentioned above hasunsurprisingly led to suspicions about IP rights, which areoften viewed as controversial and complicated. Indeed, if oneconsiders these numerous treaties from a purely legalperspective, one easily gets entangled in legalities requiring acohort of lawyers (and, arguably, very deep pockets). Yet thisview perhaps misses the point of what IP rights are all about.First and foremost, they are intended to encourageinvestments in innovation. Second, IP rights systems werecreated to regulate access to and sharing of the less familiar“intellectual” form of property. Put differently, IP systemstoday are meant to enable the orderly conduct of business inthe realm of intellectual property. The purpose of statutory IPrights, the related contract laws, and the court systems is toenable predictable, transparent business dealings betweenand among institutions and individuals.084 ✜ Global Forum Update on Research for Health Volume 4