Battle over AIDS moves to court

World dilemma: Poor countries seek right to cheaper alternatives to pricey patented pharmaceuticals.

March 07, 2001

IF GREAT pharmaceutical companies do not offer the solution to the AIDS pandemic, they'll be seen by others as the problem.

If drug companies do not take the lead, governments will do so at the companies' expense, not profit.

If the firms that invested billions to research cures and preventions do not take the initiative in cooperation, desperate regimes will not worry much about those companies' interests.

All this comes to a head in the lawsuit being heard this week in the high court in Pretoria, South Africa's capital.

Some 40 drug companies, banded together as the Pharmaceutical Manufacturers' Association of South Africa, are suing to overturn a 1997 law of that country, not yet implemented, that offers hope to 4.2 million South Africans condemned by the human immunodeficiency virus to die.

This law would empower the government to import or manufacture generic versions of drugs, owned by companies that developed them, to treat HIV and AIDS.

This is outlawed by World Trade Organization provisions protecting intellectual property, though seemingly permitted by a loophole for drastic emergencies.

The Clinton administration decided not to haul African countries thwarting patents for AIDS treatments before the WTO. The Bush administration, to the consternation of some supporters, quietly decided to let that inaction stand.

But with Brazil, a richer country and the world's leader in fighting AIDS by manufacturing generics and distributing them free, the United States is going to the WTO mat on behalf of the pharmaceutical companies.

Brazil, for its part, will ask the United Nations General Assembly special AIDS session in June to recognize the right of nations to make generic drugs to fight AIDS.

A cocktail of anti-retroviral drugs can preserve a life for $10,000 to $15,000 a year, more than three times a typical South African family's income. Companies are protecting their patent rights to recoup the cost of research and development. Generic drugs are priced only to make a profit on manufacturing and distribution.

But there is nothing economic in a price that keeps a product out of a market. Plenty of forces are making end runs around patent law to fight AIDS.

Cipla Ltd., a manufacturer of generic drugs in India, offers to sell the anti-retroviral cocktail at a wholesale price of $350 per patient per year. Doctors Without Borders, an international nongovernmental group, hopes to buy at that price and distribute it free in ten African countries.

The Rev. Angelo D'Agostino, an American priest ministering to HIV-positive orphans in Kenya, plans to go to India to bring back drugs in violation of Kenyan law. The country's public health minister said he will not be prosecuted.

Several companies plan to test experimental vaccines on humans. The major companies are belatedly offering price-cutting deals on existing treatment to the poorest countries.

The companies should lead in creating a system that makes treatment available where the AIDS scourge is greatest, while keeping drugs profitable to invent. That is their true interest.

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