Discussion Forum Theme 4

I must say that this particular example from the BBC is very revealing for many reasons:

It puts the reader in a dilemma over whether it is best to protect IPRs or whether to give in, in favour malnourished children. At this person, one can only feel helpless to grasp how Western society has managed to undermine its humanity, by degrading the importance of human life, in its (ambitious) process of evolution and self-actualization. During the podcast, the first thing that attracted my attention was how IPRs are just another example of the imposition of Western values (and sometimes, greed; e.g. the unscrupulous appropriation of traditional knowledge and the exploitation of it, even in the land were it was nurtured for centuries; Arewa (2006) advocates a flexible framework to provide a more balanced distribution of resources in this context) upon other cultures and of its consequences (e.g. the Ecuadorian tribe in the podcast). For this reason, it is very hard to have a clear-cut middle point, which Siew Kuan (2009) seeks throughout his paper, concluding that despite the “complex milieu of competing legal, political, economic and social interests”, it is essential to strike upon an “effective balance between the public interest and the legitimate private interest of patent holders”.

In my view, this balance should in certain cases be more biased towards the defense of RtD, so that products such as the Plumpy’nut are more “flexible” in terms of its patent and possible compensation. Maybe this sounds a bit scandalous and idealistic for everyone, but here it goes: one could compare this to a principle of “partial-expropriation”, whereby the State would adequately compensate that company in order to not discourage future innovation, in the name of humanity. The extent of “adequate compensation” is as legal as moral a conundrum can be… The question always crops up again: what is more important, life itself or a right of exploitation (an intellechi, as Joaquín would say) created by Westerners? This is the real issue.

The Doha’s Declaration, vis-à-vis of the soulagement of the TRIP conditions, is proof that the international community is more aware of the ever-increasing moral dilemma. Article 5 c) of the Declaration mentions “national emergencies, other circumstances of extreme urgency” as a way that States, when considered appropriate, may grant Compulsory Licenses, in order to address these issues. The very recent Novartis Case is also a major precedent which might engage into new possible resolutions in favour of de-restricting patents, as well as raising awareness of how international organizations such as WTO must choose between life or the actual self-imposed paradigm of an economic-utilitarian based society.

Great post Cecilio! You are absolutely right, this article does bring out the moral conundrums involved in the debate on IPRs vs. human rights. But, just for some sadistic pleasure to complicate the moral problem even further, let me point out that IPR itself is a human right! So, consider Art. 15 of the ICESCR:

"The States parties to the present Covenant recognize the right of everyone [...] To benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author."

Therefore, IPR is considered to be a human right itself. Any dilution of that will be a dilution of human rights of the innovators :) How then do we solve the problems such as Plumpy'Nut? I am eager to read the opinions of others as well. Should patents be granted for such 'humanitarian' products or not?

I didn't think that to break any patent will stop the hunger but I was wrong. And i thought that maybe, only maybe, the drama of hunger was more complex, I thought that maybe the problem was  political. I thought that this drama was created by politicians and I thought about politics.  Nevertheless I was  wrong, and for sure that the problems of this world are very simple: Private corporations and patents. Lets expropiate the  private corporations (Hugo Chavez, sic transit, was an expert in developing through the expropiation mechanism), let's use this magic product and we will stop the hunger in Africa.

The obvious initial answer to that question is no. No, this miraculous food product should not be protected by a commercial patent when lifting this restriction could save millions of lives. The issue is however, far more complex. 

Life should not and cannot be subservient to economic or financial interests. I understand there is a need to reward innovation and to maintain the incentive to innovate in the field of R&D. I get that the high prices are meant cover the R&D investment and to fund further research and so on. That said, the position of both parties in the Plumpy`Nut case is rather interesting in that they both agree that Plumpy`Nut is a miracle product that can save lives and that the other party has financial interest at stake by either keeping the patent description as broad as possible (Nutriset) or removing it (MamaCares). Nutriset claims that the patent is not universal and that is has many African partners that develop the RUTF as well and that its long term goal is to build African capacity and encourage African owned business, hence Plumpy`Nut is meant not only as a food product but also as a development tool for Africa and that removing the patent and allowing the US to produce similar peanut-based RUTF would hinder African producers to benefit American peanut producers and their interests based on USAID`s declaration that most (almost 80%) of its aid is based on granting American firms grants and contracts. 

Interestingly, per its Usage Agreement (available on its website), Nutriset allows NGOs and other entities to manufacture, produce and distribute this product through a Patent Usage Agreement. Even though the whole "Plumpy`Nut as a tool for development" sounds like nice rhetoric to me and there are of course financial interest behind the broad patent description, I am glad that at least some sort of compromise was reached within Nutriset and that IT IS possible for malnourished populations elsewhere to benefit from Plumpy`Nut. 

 I believe there should be more flexibility regarding patents, but that this flexibility must result from a case by case analysis process. I like Cecilio`s idea of a middle ground whereby the company received economic compensation as an incentive to innovation...Idealistic? Maybe, but we are talking about human lives here...lives being lost at an alarming rate too! This article and Plumpy`Nut deal with starvation and malnourishment but what about disease? A middle ground between altruism and financial gain has to be found. 

*I found the readings to be very interesting, I had not considered how emerging global standards were built on hierarchical constructions of knowledge and how this relates to the TRIPS Agreement. In itself, the Arewa reading was fascinating. 

Thanks Francisco and Andrea for your responses. As you guys have pointed out, like Cecilio, in a predominantly profit-based capitalist model of global governance, the challenge is always how to strike a balance between competing interests. We know that States ratify commitments under international treaties such as the TRIPS Agreement, that limit their 'policy space' to deal with adverse imapcts of globalization. For instance, we know that the primary responsibility to ensure access to medicines and theureupatic products like Plumpy'Nut, lie on States under the right to health and the right to life. Yet, patenting laws under TRIPS Agreement limit the policy space of States to do exactly that - access to necessary drugs. (Policy Space refers to the ability of States to make appropriate policies and laws that it needs to fulfill its human rights, social, environmental or other obligations). As a result, Francisco's pessimism is very well-founded - money talks, baby!

The need therefore, is to make sure that there is a balance between two competing interests - need for incentivising innovation on the one hand and access to affordable medicines on the other. (Plumpy'Nut is not strictly a medicine, but the point is the same). Andrea's point regarding patent usage agreements between Nutriset and local NGOs was great. Thanks for doing that research Andrea and sharing it with us. This could be a good option, but again, like you pointed out, most companies would not do this as well.

I have several comments to make on this issue, but I would like to hear from others as well on their thoughts. Also, I would like to revert to Art. 15(3) mentioned in my previous post that states IPR is a human right as well. So what do we do when one human right (benefiting from innovation) competes with other human rights such as the right to health and life?

Also, we know that innovators have right to benefit from their innovation, but is there also any right on other human beings to benefit from that scientific innovation? Think about this last question, in particular, because if other human beings do have such a right, that gives teeth to legal arguments that a balance must be struck. Our attempt is to move beyond moral arguments to legal ones. What do you guys think?

Alex and Francisco, you both raise excellent points and to be quite frank, both of you are right. Alex is right that a balance must be struck between the three competing interests he mentioned. And Francisco is absolutely right that whatever be the laws, they can work only if corruption does not erode them. A lot of NGOs have started looking at ways to bypass the states in their work, precisely because of corruption problems.

Alex mentioned one such way to bypass corruption (although not explicitly) and that is by issuing patent usage agreements to companies that want to copy those products and sell them. This is a voluntary agreement between the company and others, something on the lines of what Nutriset is now doings, As Andrea had pointed out. This is a good solution if the compensation is not prohibitory. For instance, if Company X sells a drug at USD 5 per tablet, it may actually benefit by allowing Company Y to produce the drug and sell it if Company Y agrees to pay USD 5 to Company X as compensation. The question there is why would Company Y agree to do such a thing if it has to pay all of USD 5 to Company X? What will it earn? The only way this can work is if Company X says, look here, our cost of production is USD 3. We sell it at USD 5 and make a profit of USD 2. We will allow Company Y to copy our drug and sell it at USD 5, provided we recieve USD 2 out of it. That way, we recieve the profit we would otherwise have, without even producing and selling the drug. Company Y may also benefit by a profit of USD 1, if it can produce the drug at USD 2 and pay Company X USD 2 as compensation.

This very seldom happens though, because Company X wants to keep out every other competitor, and does not want to share patented technology. When voluntary licenses like these don't work, compulsory licenses come in and these must be done at the behest of the State. But again, we face roadblocks here either because of all the problems we discussed in the presentation, or because someone in the government sees this as an opportunity of filling up their pocket,s as Francisco mentioned.

Now from the perspective of the real people in need of those medicines or hunger relief products, their access to the things they need gets mired up in these legal technicalities. It is important for us to get to the bottom of this and understand the normative standing of their claims. Of course, I will follow up with other aspects later, once we have more posts, but for now, I again want to revert to my previous question and ask you all the following:

We know that innovators have human right to benefit from their own scientific inventions. Do other human beings have a similar human right to benefit from scientific progress?

All we know that the ultimate purpose of any company is to obtain and subsequent profit-maximisation. In this case we find that a patent of a company can help in the fight against child malnutrition in underdeveloped countries. Nobody with a gram of heart would refuse to unlock the patent to help save these lives; however, this case does not impinge on the real problems which are causing death and malnutrition . All we know that the surpluses of wheat and cereals in the United States are sent to Africa , however in recent years there has been a dramatic rise in price due to the rise of biofuels that use agricultural products for its preparation, this has produced the surpluses are minors and therefore the aid they received the underdeveloped countries has been drastically reduced. In conclusion I would like to make a defense of private property as a fundamental basis of the rule of law.. It is crucial to understand that the companies research and invest your money to create products that will generate benefits ; you must be very careful when it comes to require or compel companies transfer of patents or products for free, because no law obliges them to do so, separate issue is morality, but morality is not relative to the law, since there are many issues that are legal but of dubious morality or null.

Great points Francisco, Wafa, Aram and Jose. In summarizing your points I would like to highlight the legal provision in the ICESCR Art. 15 that Aram mentioned. While it is the right of the innovators "To benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author", it is also the right of everyone to enjoy the benefits of scientific progress and its applications". Obviously, the solution as well as the challenge, is to strike the balance between the two. While Jose is right in terms of cautioning against deincentivising companies by diluting patent protection, Francisco, Aram and Wafa are also right that economic profits must not come at the cost of human lives.

In fact, the exceptions in TRIPS Agreement were made precisely because there was an agreement amongst States that public health should not be a casualty of the IPR regime. The attempt to figure out some sort of a happy balance is, unfortunately, not easy at all.

I would like to provoke you further for critical reflection. Art. 15 of the ICESCR talks about inventors benefitting from moral and material interests resulting from their inventions. However, it does not lay down the scope of how such benefits must accrue. That is done by the IPR regime that lays down criteria such as exclusion of competitors to produce the patented product for 20 years. One could argue, therefore, that the TRIPS regime is a lex specialis and by breaking the balance required, it is in conflict with human rights regime that requires not only that balance to be maintained, but also requires access to medicines as a human right obligation on States as well. As students of International Law, a very important question in this regards is as follows:

Does human rights law trump IPR law? In other words, if obligations of States under human rights law are breached because of IPR obligations, should the conflicting IPR obligations be superseded by the former?