In the early 1980s, the world became aware of a viral disease that was causing a number of rare diseases among a variety of groups, including intravenous drug users, homosexual men and haemophiliacs. The condition, of course, was AIDS, caused by the human immunodeficiency virus (HIV).  Shortly after the identification of the virus, scientists began working on possible treatments, culminating in the first anti-viral treatment for HIV, called azidothymidine (AZT). The drug reduced the amount of the virus in the body, thus diminishing the risk of developing AIDS-related illnesses. Since the development of AZT, well over a dozen other anti-retroviral drugs have been developed by major pharmaceutical companies, many of which are, or were, patent protected. In the early 1990s, the annual cost for treatment with AZT approached $10,000. Subsequent to the development of these drugs, pharmaceutical companies were criticized for not allowing access to the drugs in impoverished nations, as people simply could not afford the high prices charged in developed countries.
During the crisis, non-governmental organizations (NGOs) were critical of pharmaceutical companies as a result of their strong stance on intellectual property laws, even in countries where patients could not afford the patented medicines. While a country such as South Africa could have simply ignored the patents protecting the medicines, they were concerned that doing so would result in economic sanctions for breaching international trade agreements.   

In response to the perceived failings of pharmaceutical companies to address the issue of epidemics, some governments, including Canada, enacted laws that allowed for the exportation of patented medicines to impoverished nations. In 2003, Canada enacted The Jean Chrétien Pledge to Africa Act, which allows for generic manufacturers to be granted compulsory licenses to produce patented drugs. The drugs can then be exported to developing countries to address public health problems, especially those resulting from HIV/AIDS, tuberculosis and malaria.  

In their initial response to the AIDS crisis, pharmaceutical companies argued that without strong intellectual property laws protecting their medicines around the world, other countries would begin to ignore the patents that protected the drugs. If there were no ramifications for ignoring patents in one country, there would be no deterrence for other countries to not follow suit. Without such protection, it was argued, companies would not recoup their huge investments in research and development. Eventually, drug companies entered into preferred pricing arrangements with developing countries to sell the patented medicines at a much lower cost. In addition, they established various drug donation programs to address such epidemics.

There are no easy answers in a public health policy debate concerning access to life-saving medicines, especially when viewed in a global context. Before debating the issue however, it should be remembered that pharmaceutical companies are not the cause of the epidemics; they simply respond where they feel there is a need. While their response may be profit driven, it does not change the fact that the AIDS epidemic, for example, is simply not their doing. The landscape of patented medicines is a veritable minefield of complicated issues that pharmaceutical companies must navigate. Whether fair or not, few other technology companies have to address life-or-death decisions with respect to their intellectual property. Since the AIDS crisis, pharmaceutical companies have become much more aware of the need for access to medicines in developing countries. For example, in a report by the International Federation of Pharmaceutical Manufacturers and Associations, the research-based pharmaceutical industry has pledged to donate 14 billion treatments between 2011 and 2020 for the treatment of neglected tropical diseases, such as leprosy and river blindness. 

Pharmaceutical companies may be able to provide the means for the treatment of global epidemics. However, they form only one part of the solution to such problems. Governments, NGOs and patients themselves must all be involved in a sustained and coordinated effort in the education, treatment and, hopefully, the eradication of diseases.  

Mike Fenwick is a patent lawyer with Bereskin and Parr LLP in Toronto and holds a master’s degree in organic chemistry.