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


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