Access to medicines and domestic compulsory licensing: Learning from Canada and Thailand

Abstract

Within the array of measures for improving medicines access for the world's neediest populations, governments of many countries have turned to compulsory licensing, a statutory mechanism to enable third parties to manufacture a product or process still under patent. In this paper, we focus on a historic case example from Canada and the present example of Thailand's use of domestic compulsory licenses as a policy tool for ensuring public access to affordable medicines. The overarching objective is to draw out policy and legislative insights that may be of value for countries with pharmaceutical manufacturing capacity and which are considering better access to patented medicines for their populations under the current global intellectual property regime. From these cases, it is apparent that although compulsory licensing is not a novel remedy, even in a post-Trade Related Aspects of Intellectual Property Rights environment, it remains a powerful policy tool in improving access to medicines in a variety of domestic settings.

Keywords:

• public health
• compulsory licensing
• TRIPS
• pharmaceutical policy
• medicines access
• Canada
• Thailand

Acknowledgements

This research was made possible by funding provided by the Canadian Institutes of Health Research.

Notes

1. Lilly v S & U Chemicals [1997] 1 SCR 536 at paragraph 9, citing Frank W. Horner Ltd. V Hoffman-La Roche Ltd., [1976] 61 CPR 243, 248 (Commissioner of Patents), affirmed [1972] SCR vi (Can).

2. Detailed discussion regarding the PMPRB is outside the scope of this paper. For more information see the PMPRB website: http://www.pmprb-cepmb.gc.ca/english/home.asp?x=1 [accessed 20 December 2008].

3. See Thailand Ministry of Public Health (2007b) and Thailand Department of Disease Control et al. (2006, 2007).

4. The drugs threatened to be withdrawn include: the painkiller Brufen [ibuprofen]; an antibiotic Abbotic [clarithromycin]; a blood clot drug Clivarine [reviparine]; the arthritis drug Humira [adalimumab]; the high-blood pressure drug Tarka [trandalapril/verapamil]; and the Kidney disease drug Zemplar [paricalcitol].

5. While discussion of this issue is outside the scope of this paper, it would be an interesting exercise to draw comparison between the 1969 Amendments and Canada's current Access to Medicines Regime, which resulted from the Jean Chrétien Pledge to Africa Act of 2004.

6. The WHO does provide Remuneration Guidelines for Non-Voluntary Use of a Patent on Medical Technologies.