When Nelson Mandela’s Government passed the Medicines and Related Substances Control Act in 1997 to make medicines more accessible to the poor, 39 big pharmaceutical companies filed law suits in the Pretoria High Court against the South African government on the grounds that their patents were being infringed upon. South Africa was grappling with the unprecedented spread of the human immunodeficiency virus/acquired immune deficiency syndrome (HIV/AIDS) and availability of affordable medicines was a top health priority. Medecins Sans Frontieres (MSF), or Doctors without Borders, supporting the government, ran an international campaign urging the companies to drop the case. MSF’s petition pointed out that during the pendency of the case about 400,000 South Africans had died of HIV/AIDS. This led to a public outcry against the companies, which were seen as putting profits above people. The companies withdrew the case in April 2001. It was hailed as a big victory for the cause of public health, where access to affordable treatment is of paramount importance. And shortly after that, in June the same year, the United States withdrew a complaint against Brazil, filed at the World Trade Organisation (WTO), challenging Article 68 of Brazil’s patent law. The complaint alleged that Article 68 was in contravention of provisions of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). Brazil, another country struggling to contain the spread of HIV/AIDS, had felt the need for the said article as it could, under special public health circumstances, grant companies compulsory licences to produce cheaper generic drugs even if it meant allowing exemptions to patents of foreign companies.
Both the South African and Brazilian governments held that their patent laws were consistent with flexibilities provided within the ambit of the WTO and other international laws. If the U.S.-Brazil settlement and South Africa’s emphatic victory signalled the retrieval of some of the ground public health had lost to the paradigm prioritising profits, there has been, ever since, a steady but firm and sustained effort to dislodge even this modest gain.
This has taken the form of free or regional trade agreements, such as the Trans-Pacific Partnership (TPP), the European Free Trade Association (EFTA), the Regional Comprehensive Economic Partnership (RCEP) and the Transatlantic Trade and Investment Partnership, seeking to strengthen the current patent regimes, which are loaded in favour of big pharma companies and ignore the health-care imperatives of the poor, globally.