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14 J. World Intell. Prop. 1 (2011)

handle is hein.journals/jwip14 and id is 1 raw text is: I he Journal ot World Intellectual Property (2011) Vol. 14, no. 1, pp. 1-20 doi: 10.1111/j.1747-1796.2010.00407.x Exploiting Patent Regulatory Flexibilities to Promote Access to Antiretroviral Medicines in Sub-Saharan Africa Poku Adusei University of Ghana The HIV/AIDS pandemic has reached a crescendo in Sub-Saharan Africa (SSA or Saharan region). This disease threatens to exterminate the human race in the Saharan region. The situation is further exacerbated by high prices of brand name antiretroviral medicines due to the prevailing international patent regime. And, attempts to promote the manufacture and import of generic versions of antiretroviral drugs are sometimes met with stiff resistance from pharmaceutical companies who own the patents. This article, therefore, seeks to examine the subject of patent regulation of antiretroviral drugs in the light of the threat posed by HIV/AIDS in SSA. It urges the exploitation of diverse patent regulatory mechanisms to promote access to antiretroviral drugs in the region worst hit by the HIV/AIDS epidemic. Exploiting patent regulatory flexibilities implies the use of: negotiations, compulsory licensing mechanisms, public-private partnerships, collaborative initiatives among regional economic blocs, increased drug-pricing competition, and a rejection of TRIPS-Plus obliga- tions, among others, to procure relatively cheaper versions of antiretroviral medicines for persons infected with the virus. This will enable policy makers in the Sub-Saharan region to respond more effectively to expand the capacities of HIV/AIDS-affected persons and make them more productive. It will further save the healthcare systems in SSA from imminent collapse. Keywords TRIPS Flexibilities; HIV/AIDS; access to medicines; Sub-Saharan Africa Sub-Saharan Africa (SSA or the Saharan region)' is teetering on the brink of a human calamity. The HIV/AIDS pandemic has engulfed, and continues to engulf, the Saharan region in an unprecedented proportion. Despite recent claims of progress in the fight against the HIV/AIDS epidemic in some parts of Africa, SSA still remains the epicentre of the disease (Joint United Nations Programme on HIV/AIDS [UNAIDS] and World Health Organization [WHO], 2008). Conservative estimates indicate that two thirds of the world's HIV infection rate is in SSA, and more than three in four (76%) AIDS-related deaths occur in that region (UNAIDS and WHO, 2007).2 Worse still, the Saharan region accounts for 67% of the world's least developed countries (LDCs) and millions of people infected with HIV do not have access to medicines. As a consequence, being HIV positive in SSA is rapidly becoming a death sentence. And there is ample evidence to support the fact that HIV/ AIDS has become a national emergency in parts of Africa. On the flip side, the increase in the incidence of HIV/AIDS in SSA has escalated the demand for antiretroviral medicines. Antiretroviral medicines, where they are accessible, can prolong the lives of people infected with HIV (Crowley, 2010; Kuanpoth, 2007; Srivastava and Satyanarayana, 2009, p. 672). Antiretrovirals are therefore needed to promote the healthcare needs of millions of people infected with HIV in SSA. But as it now stands, access to quality healthcare remains the province of the few elite in SSA. The general population cannot afford to buy patented brand name medicines and, most often, people on an antiretroviral regimen experience treatment interruptions due to financial difficulties (Hoen, 2009, p. 5). Also, the sustainability of healthcare institutions is under threat owing largely to the high cost of pharmaceutical products in the marketplace. ( 2010 Blackwell Publishing Ltd 1

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