Philip Stevens, CMPI Senior Fellow, responds to an Oxfam report on dealing with the growing problem of counterfeit drugs in developing countries:
Read the full article here.
Oxfam's trademark confusion
Philip Stevens
10-Feb-2011
Counterfeit and substandard medicines in developing countries are becoming a critical problem. A report released by Oxfam earlier this month(1) claims to have the answers: stop treating fake medicines as an intellectual property problem, and do whatever it takes to bolster local regulation. Oxfam's diagnosis is only half-correct. Unfortunately, the same can't be said for its prescriptions.
Oxfam's main beef with current approaches to the problem the conflation in certain pieces of legislation of intellectual property issues such as patents with trademarks. Exhibit A is Kenya's 2008 Anti Counterfeiting Act, which was designed to protect Kenyan citizens from the increasingly ubiquitous counterfeit products that are flooding the local market, from fake tyres to dodgy toothbrushes.
While such products are not without their dangers and economic costs, a more pressing concern is the staggering proportion of counterfeit and substandard medicines circulating in the country, which recent studies have put as high as 38 per cent(2).
Proponents of the 2008 Act hoped it would finally put a floor under the plummeting quality of the country's medicine supply; as most physicians know, medicines that contain therapeutically sub-optimal levels of active ingredient can promote drug resistance and lead to clinical failure.
Oxfam's criticism of Kenya's anti counterfeiting bill is not without grounds: from a legal perspective, it is a badly drafted law that attempts to achieve too much. The bill defines counterfeiting as an intellectual property breach of a protected good, which can include "the manufacture, production, packaging, re-packaging, labelling or making, whether in Kenya or elsewhere, of any goods whereby those protected goods are imitated in such manner and to such a degree that those other goods are identical or substantially similar copies of the protected goods."
In theory, this could outlaw well-made generic copies of drugs that are on-patent anywhere overseas. Seeing that the vast majority of drug patents are not registered in developing countries like Kenya, this could suddenly reduce the range of generic medicines available to physicians, undermining competition while doing little to address drug quality.
Oxfam's main beef with current approaches to the problem the conflation in certain pieces of legislation of intellectual property issues such as patents with trademarks. Exhibit A is Kenya's 2008 Anti Counterfeiting Act, which was designed to protect Kenyan citizens from the increasingly ubiquitous counterfeit products that are flooding the local market, from fake tyres to dodgy toothbrushes.
While such products are not without their dangers and economic costs, a more pressing concern is the staggering proportion of counterfeit and substandard medicines circulating in the country, which recent studies have put as high as 38 per cent(2).
Proponents of the 2008 Act hoped it would finally put a floor under the plummeting quality of the country's medicine supply; as most physicians know, medicines that contain therapeutically sub-optimal levels of active ingredient can promote drug resistance and lead to clinical failure.
Oxfam's criticism of Kenya's anti counterfeiting bill is not without grounds: from a legal perspective, it is a badly drafted law that attempts to achieve too much. The bill defines counterfeiting as an intellectual property breach of a protected good, which can include "the manufacture, production, packaging, re-packaging, labelling or making, whether in Kenya or elsewhere, of any goods whereby those protected goods are imitated in such manner and to such a degree that those other goods are identical or substantially similar copies of the protected goods."
In theory, this could outlaw well-made generic copies of drugs that are on-patent anywhere overseas. Seeing that the vast majority of drug patents are not registered in developing countries like Kenya, this could suddenly reduce the range of generic medicines available to physicians, undermining competition while doing little to address drug quality.
Read the full article here.
