Patent system is generally regarded as a catalyst for technological and socio-economic development through the workings of useful patents for the overall benefit of the society. By securing proprietary rights in patented invention, the patent system encourages research and development (R&D) needed for the promotion of innovative and inventive enterprise.
Today however there is growing concern about the patent system not performing on its original role in public health, as implicated in the controversial or perceived role patents is said to play in the debate of access to medicines. Leveraging the patent system in addressing the problem of access to medicine has become part of the protracted global debate on the relationship between intellectual property and public health.
(See Adebambo Adewopo , Public Health, Access to Medicines and the Role of Patents System in Nigeria.
One of the cornerstones of public health policy in any given country, whether developed or developing, is the institution and sustenance of a viable health care system that ensures among others, adequate access to medicines by a significant percentage of the population. Drug R&D is an area of technology that requires huge investment but it generally offers no definite returns. Consequently, it is driven and shaped by the worldwide legal recognition and protection of patents for compounds, processes and products, as these will confer on patent owners the right to prevent others from making and selling the patented product, and allow them to recoup their significant investment. Once drugs lose patent protection, companies lose control over production, because most drugs are easy to copy and can be marketed for a fraction of the originator price. More so, not only can stronger patent protection attract foreign direct investment, it can also increase investments in research and development, encourage scientists to invent new drugs and invest in their national economies and improve the overall quality of health of developing countries. Still, the legitimate rights of inventors and encouragement of pharmaceutical innovation have to be weighed against the right to health and access to affordable medicine.
(See Sidonie Descheemaeker : India, Pharmacy of the Developing World IP, Trade and the Access To Medicine. https://www.law.kuleuven.be/jura/art/49n3/descheemaeker.pdf last accessed 6/10/16)
Medicines for Malaria Venture (MMV), a leading product development partnership (PDP) in the field of antimalarial drug R&D , in line with its vision of a world in which these innovative medicines will cure and protect the vulnerable and under-served populations at risk of malaria, and help to ultimately eradicate this terrible disease, uses IP strategically to ensure that the antimalarial drugs it develops with partners reach the people who need them, even the very poor. This is because developing a new drug and deciding to protect its IP is not merely about investment or protecting returns, it is about saving lives and alleviating suffering.
(See: The Role Of Intellectual Property in the Battle against Malaria by Sylvie Fonteilles-Drabek, Executive Vice-President and Head of Legal, Jaya Banerji, Director of Communications and Advocacy, and David Reddy, Chief Executive Officer, Medicines for Malaria Venture (MMV) October 2016 http://www.wipo.int/wipo_magazine/en/2016/05/article_0006.html last accessed 5/10/16)
In order to strike a balance between protecting returns and saving lives, MMV therefore engages varying degrees of openness during research, using Open Source, Open Access and the preferred model of Open Innovation during early stage research. It is believed that value allocated to the IP will facilitate the negotiation of collaboration agreements with pharmaceutical partners, whose skills and experience in taking drugs through trials and registration to the market are essential. However there is a mutual understanding that antimalarial products emerging from an MMV-Pharma collaboration must be affordable (sine qua non) and pharmaceutical partners will operate on a “no-profit, no-loss” basis (with third-party audit to verify cost structure). To meet its public health goal of developing efficacious and affordable antimalarials for vulnerable populations, MMV may use its patent protection as a deterrent to the production of suboptimal antimalarials.
MMV has therefore valued IP and used it strategically to fulfil its public health mission. It often serves as a tool to attract industry partners, an incentive to conduct research and a guard against misuse of innovation. In the effort to bring quality, innovative treatments to malaria sufferers, MMV’s IP policy has evolved into a dual strategy, successfully combining the strengths of the Open Innovation approach and IP protection.
Further Reading Material:
1.Cheri Grace: The Effect of Changing Intellectual Property on Pharmaceutical Industry Prospects in India and China: Considerations for Access to Medicines http://www.who.int/hiv/amds/Grace2China.pdf last accessed 9/10/16
2. Leslie Chan, Barbara Kirsop and Subbiah Arunachalam : Open Access Archiving: the fast track to building research capacity in developing countries https://tspace.library.utoronto.ca/bitstream/1807/4415/1/Open_Access_Archiving.pdf last accessed 9/07/16