PRIVATE PATENTS AND PUBLIC HEALTH

number of reasons: it provides low-cost generics for people in the countries
that are part of the agreements. It also provides a benchmark for other
actors to either negotiate with the patent holder a better price or seek other
solutions to access the medicine. It sets new public health norms and
standards for voluntary licensing. And because it sets those new norms, it
also offers the possibility for countries outside the scope of the agreements
to benefit from the generic supply through compulsory licensing. For
example, Peru is currently contemplating a compulsory licence for
atazanavir. BMS holds the atazanavir patent in Peru until 2018, and Peru
today pays on average US$ 12.85 per 300 mg of the drug, sold under the
brand name Reyataz. Bolivia, which can access generic products, pays US$
0.50 per 300 mg. Peru is not in the scope of the MPP’s agreement with BMS;
however, public-health oriented provisions negotiated by the MPP mean
that generic manufacturers using the MPP licence to make atazanavir will
be able to export it to Peru if the country issues a CL. 133
There are also important challenges and limitations to the MPP. In
particular, participation in the MPP by patent holders is voluntary. While
all ARV patent holders are currently engaging with the MPP, and of those
all but two have signed agreements, the MPP does not have the power to
force reluctant patent holders to the negotiation table. The MPP also has no
power to dictate terms and conditions to a company that is not willing to
accept them. For example, a company can seek to limit the geographical
scope of the licence. Also, the MPP so far has been primarily limited to HIV,
while problems of access to medicines exists in many other areas of health.
Important advantages of the MPP are that it negotiates licences from a
public health perspective and seeks the broadest possible application in
terms of number of countries and people that can benefit from the
agreement. The licences are predictable and transparent. The MPP’s
transparency with regard to the licence agreements is unprecedented: all
agreements are made public on the organisation’s website, where they are
open to scrutiny by others. This is important for building trust in the work
of the MPP, but also to help improve the agreements. Prior to
the MPP, the terms and conditions of voluntary licences were largely
kept secret. But by allowing others to scrutinise the outcome of the
negotiations, areas of improvements have been identified and led to
changes in the agreements. The MPP proactively engages with the generic
industry and others to ensure uptake of the licences, to encourage the
development and production of priority products and to ensure products
meet quality standards. UNITAID remains a key strategic partner to the
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FROM DECLARATION TO APPLICATION: THE PRACTICAL USE OF THE DOHA DECLARATION SINCE 2001
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