At the Intersection of Health, Health Care and Policy Cite this article as: Ellen 't Hoen and Jorge Bermudez Compulsory Licenses For Medicines Health Affairs, 34, no.6 (2015):1068 doi: 10.1377/hlthaff.2015.0452

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doi:

10.1377/hlthaff.2015.0452

Compulsory Licenses For Medicines The conclusion of Reed Beall and coauthors (Mar 2015) that “compulsory licenses are unlikely to be the best strategy for access to minimally priced drugs when international procurement is an available alternative” is based on a lack of understanding of the international medicines market. “Minimally priced drugs” are generic medicines priced at close to marginal cost. Such medicines are available in robust competitive markets where patents do not create barriers. Where such barriers do exist, even international procurement will mean paying high prices. For example, this was the case with procurement of darunavir by the Global Fund to Fight AIDS, Tuberculosis, and Malaria (Michel Kazatchkine, executive director, the Global Fund, letter to Jorge Bermudez, October 7, 2010). It is therefore incorrect to present “international procurement” as a sure way to achieve the lowest possible price. Countries where patent barriers exist cannot benefit from international competitive markets, and those are the countries that resort to compulsory licensing. The key question is whether those licenses resulted in lower drug prices and increased access. Based on evidence from Thailand and Brazil, for example, one can con-

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clude that this was the case. 1 Recommending compulsory licensing as a “last resort” is not consistent with international norms 2 and fails to recognize the changed environment of pharmaceutical patenting. Most World Trade Organization countries grant twenty-year patents for medicines. International competitive markets for such patented products will not emerge until after the patent terms expire. It would therefore be wiser to recommend the routine use of licensing in government procurement of medicines than to recommend compulsory licensing as a “last resort.” Ellen ’t Hoen Medicines Law & Policy PARIS , FRANCE Jorge Bermudez Oswaldo Cruz Foundation, Ministry of Health RIO DE JANEIRO , BRAZIL NOTES 1 World Trade Organization. Promoting access to medical technologies and innovation [Internet]. Geneva: WTO; c 2015 [cited 2015 Mar 23]. Available from: https://www.wto.org/english/ tratop_e/trips_e/trilatweb_e/trilat_web_13_ e.htm 2 World Trade Organization. Declaration on the TRIPS agreement and public health [Internet]. Geneva: WTO; 2001 Nov 20 [cited 2015 Mar 23]. Available from: https://www.wto.org/english/ thewto_e/minist_e/min01_e/mindecl_trips_ e.htm

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Compulsory Licenses For Medicines.

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