Not all patents are justified
‘Drug companies routinely apply for patents or are granted monopolies on medicines even when these aren’t actually deserved,’ said Mrs Michelle Childs, Director of Policy Advocacy for MSF’s Access Campaign. ‘It’s a myth that every patent application that is filed is valid. When you look closely, a patent application may fail one or more of the legal tests it needs to pass.’

‘Due to the volume of applications, local patent examiners can miss information and grant unjustified patents,’ explains Mr Vikas Ahuja, President of the Delhi Network of Positive People. ‘Just putting two or three separate pills into one, or using known industry practices to formulate a drug, should not be considered innovative enough to warrant a new 20-year patent, for example. By filing patent oppositions, we can highlight this information and the possibility of invalid patents being granted is reduced.’

A ‘patent opposition’–a legal challenge to prevent or overturn the granting of an unwarranted patent–is allowed under international trade rules to keep checks and balances on pharmaceutical patenting. In countries where they are allowed, like Brazil, India and Thailand, patent oppositions have successfully prevented undeserved patent monopolies from being granted and allowed generics competition to bring the price of medicines down.

Drug prices can tumble dramatically
Successful examples include the opposition by Indian groups to GlaxoSmithKline’s patent application in India for the HIV fixed-dose combination zidovudine/lamivudine, on the grounds that it was not a ‘new invention’, but simply the combination of two existing drugs. This combination is now widely used in HIV treatment in developing countries.

Another challenge has resulted in the rejection of Novartis’s application for a patent on a slightly different form of imatinib, on the basis that the medicine was merely a new form of an old medicine. The move–which is now the subject of a challenge before the Indian Supreme Court–opened up generics competition on the drug used in the treatment of chronic myeloid leukaemia and has brought the price down by 92% from over Euros 1,655 per month to Euros 133 per month.

New online database
On the 10-year anniversary of a landmark Thai case, a new ‘Patent Opposition Database’ aims to boost access to medicines. MSF launched a new online resource, the Patent Opposition Database on 2 October 2012.

The Patent Opposition Database aims to guide civil society groups through the process of challenging an unjustified patent. It will allow organisations to forge new alliances and share vital specialist knowledge, as a patent application can often be challenged in different countries on the same basis. It contains a searchable listing of 45 patent oppositions relating to key medicines and over 200 other supporting documents that will aid in the building of future patent oppositions. The resource will grow as more data is added.

The launch of the database marks the ten-year anniversary of the first time a patent opposition filed by a patient group - Thailand’s AIDS Access Foundation - successfully overturned an unfair patent on the HIV drug didanosine in the Thai courts.

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