NGOs which are treating people with AIDS and working to improve access to medicines say patents block affordable, easier-to-take medicines from reaching people who need them. This is in sharp contrast to a 17 October communication co-authored by Amir Attaran of the Harvard Center for International Development and Lee Gillespie-White of the International Intellectual Property Institute, "Do Patents for Antiretroviral Drugs Constrain Access to AIDS Treatment in Africa".

The publication claims that "patents in Africa have generally not been a factor in either pharmaceutical economics and antiretroviral drug treatment access." The findings of this paper have been extensively used by industry to back their claim that patents are not an issue. The pharmaceutical company Merck has also funded one of the authors. The NGOs agree with the "special communication's" claim that many barriers impede access to health care in Africa, and support their call for international financial aid to fund antiretroviral treatment. However, they believe that the data presented in the paper do not support the conclusions drawn, but actually shed light on the extent of patent barriers to treatment.

In African countries, the most practical and sought after combinations include fixed dose medicines (two drugs in one pill) and affordable non-nucleosides. The most popular combination of AZT/3TC is patented in 37 out of 53 countries and the only affordable non-nucleoside (nevirapine in generic form) is patented in 25 out of 53 countries.

Many of the non-patented drugs listed in the study, including some of the protease inhibitors, are not practical as first-line treatments in resource-poor settings because of side effects (which need to be monitored) and cumbersome dietary requirements. The study data show that patents are concentrated in countries where pharmaceutical markets are the largest.

In South Africa, which has 4.7 million people living with HIV/AIDS and represents half of the pharmaceutical market in Africa, 13 out of 15 antiretroviral treatments are patent protected. In fact, half of the people with HIV/AIDS in Africa live in countries with significant patent barriers on antiretroviral drugs.

The authors claim that even if prices of patented ARVs come down, African countries cannot afford them. But since generic triple therapies can now cost as little as US$30 a month, significant numbers of individuals and employers can afford the treatment, if it were not for patents. Patented prices are still three times higher than generic prices. This means that for a given amount of international aid, three times as many people can be treated if generic production is allowed.

This misleading "communication" seems to be an attempt to sabotage a process initiated by the developing world, which seeks to ensure that patents will no longer be a barrier for access to medicines. A draft declaration calling for a pro-public health interpretation of TRIPS was put forward by 60 developing countries in the September 2001 TRIPS council session on access to medicines. The declaration, signed by 41 African nations, states that "nothing in the TRIPS agreements shall prevent members from taking measures to protect public health."

The declaration, which will be considered at the next WTO ministerial conference, has been opposed by the United States, Switzerland, Japan and Canada. If nothing changes, beginning in 2006, all WTO Members will be obligated to grant twenty-year minimum patents for medicines.

For this reason, it is critical that the false conclusions drawn from the data do not lead people to believe that patents are not an issue in access to life-saving medicines.