OTTAWA, Sept. 15, 2016 – The UN High Level Panel on Access to Medicines delivered its long-awaited report this week, generating headlines and policy debates about the role of intellectual property protection and innovation in providing live-saving medicines for the world’s poor.
The panel is co-chaired by Ruth Dreifuss, former president of Switzerland, and Festus Gontebanye Mogae, former president of Botswana, and includes Canadian Stephen Lewis, former UN Special Envoy for HIV/AIDS in Africa. It was tasked with finding proposals for “remedying the policy incoherence between the justifiable rights of inventors, international human rights law, trade rules and public health in the context of health technologies.”
The panel’s overarching goals are laudable, and indeed are shared by all who care about a better world. Helping those in developing countries get access to life-saving medicines should be a global objective. The key question is, what are the best means to achieve it?
Unfortunately, a number of the panel’s key recommendations are unlikely to help make real progress toward this objective and in fact are more likely to undermine it, according to MLI Munk Senior Fellow Richard Owens, an expert in intellectual property. He says that what the panel calls policy incoherence goes to the root of the whole global patent system, which allows access to patented technologies to be restricted for a certain period of time. The panel is putting in question whether the patent-holder should be allowed that period of time at all, according to Owens.
“With calls for measures such as disclosure of R&D costs, the Panel is attempting nothing more than undermining the entire patent-based drug development system”, says Owens.
The report states: “medical innovation has dramatically improved the lives of millions of people across the globe.” Yet it goes on to recommend sweeping reforms to weaken intellectual property rules, including toughening patentability requirements and facilitating compulsory licensing, that would likely hamper medical innovation. At the same time, it recommends more financial incentives for research and development in medical innovation, at considerable cost to governments and taxpayers, managed by an unwieldy bureaucracy. The call for governments to involve themselves directly in drug development would be terribly inefficient, at the cost of taxpayers, says Owens, which private drug development is not.
According to Owens, maintaining a fair yet sensible intellectual property regime is the only way to support the conditions for private investments in medical innovation and ensure that new drugs and technologies are broadly available, but the UN report makes no mention of the wealth-creating and innovation-enhancing effects of private drug development.
The panel’s report concedes that its singular focus on intellectual property fails to account for myriad other factors and policy levers, including the role for development assistance programs, public education training, and regulatory policy in achieving sustainable development and improved human health. “It is a pity that opportunities were missed to focus on more pressing concerns in healthcare delivery in less-developed countries”, says Owens.
Richard Owens is a lawyer who has specialized in business and commercial law, regulation of financial institutions, intellectual property and technology. He is an adjunct professor with the University of Toronto Faculty of Law and has served as the Executive Director of the Centre for Innovation Law and Policy at the University of Toronto. Richard has written and published widely on intellectual property law, the law of information technology, privacy, and the regulation of financial institutions.
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