Kenya's anti counterfeit legislation, India protest

Yesterday's The Financial Express editorial commented on this article entitled: Govt Protests as generic drugs get bitter pill in Africa describing an outcry in India over the recent passing of Kenya's anti-counterfeit legislation. The editorial is copied below for your consumption and comments, which may be posted below. Previous postings on Afro-IP can be located here, here, and here.

"As FE reported yesterday, India has called an extraordinary meeting of ambassadors of all African countries to register its strong protest against a Kenyan anti-counterfeit Act that could severely restrict the market for Indian generic drugs into Africa. Why is this legislation of supreme importance to both Africa and India? When HAART—a combination therapy for delaying the onset of AIDS—became available in rich countries in 1996, it took only four years before death rates for people with HIV/AIDS there dropped by 84%. But, at $10,000-15,000 per person per year, these antiretroviral drugs were far too expensive for most HIV-infected people in poor countries. It was only when Indian pharmaceutical companies started producing generic (and, therefore, cheaper) versions of these antiretrovirals that prices came down significantly in developing countries as well. By 2001, Indian generic manufacturers (like Cipla) were offering triple combination therapy for around $300. According to the Unaids 2008 report on the global AIDS epidemic, India is the largest supplier of generic antiretrovirals to low- and middle-income countries. Speaking of India’s interests, 14% of Indian pharmaceutical exports are to Africa, with Kenya being the third largest African market for Indian drugs. Now, since the global pharmaceutical market is likely to see $123-billion worth of products lose patents by 2012, there is good reason to believe that the Kenyan legislation has been influenced by vested interests.

Given that the expiry timeline for drug patents differs across countries, it’s really problematic that the Kenyan legislation protects the intellectual property rights of drugs that are registered even outside Kenya. As the FE story explains, this would mean that if patent rights of a drug exported from India to Kenya are not registered in India but, say, in Jordan, Kenya will have the right to take legal action against the Indian drug company by labelling the Indian product as counterfeit. In a parallel development, the Indian patent office has rejected Swiss drug multinational Novartis’s application to secure a patent for an alfa crystal form of its blockbuster cancer medicine, Glivec. However, this decision, while not uncontroversial, at least has some grounds: a) withholding patents from earlier inventions; and b) protecting rights of patients to access life-saving drugs at affordable prices. In the Kenyan case, on the other hand, it appears more likely that the proposed protection is aimed at allowing big pharma to protect their monopolies by strong-arming weaker governments via their own. "