KENYAN PARLIAMENT REJECTS PATENT LAW AMENDMENTS, PRESERVES TRIPS FLEXIBILITIES

The Kenyan parliament last week rejected proposed amendments to national patent rules which could have threatened the provision of essential medicines. The decision preserves the government's right to issue compulsory licenses that authorise the import, manufacture and supply of generic copies of patented products.

Public health advocates greeted the move with relief. "It means Kenya can continue to buy medicines from the cheapest source and make them widely available for patients," said James Kamau, coordinator of the Kenya Treatment Action Movement.

The WTO Agreement on Trade-related Aspects of Intellectual Property Rights (TRIPS) allows governments under certain circumstances to issue compulsory licenses on patented inventions without the authorisation of the patent-holder, which effectively suspends the patent. Developing countries have used these flexibilities to produce or import affordable generic copies of patented drugs to treat HIV/AIDS and other diseases. Industrialised nations have a long history of issuing compulsory licenses for patents ranging from car parts to medicines, in order, for example, to combat anti-competitive practices.

According to the United Nations, 1.3 million people are living with HIV/AIDS in Kenya. Ellen t'Hoen of Médecins Sans Frontières said that "our ability to provide AIDS medicines to over 10,000 people in Kenya depends on the availability of affordable generic medicines… [which] would have been in jeopardy if the amendments had gone through."

The amendment in question, contained in the Miscellaneous Amendments Bill debated late on 12 September, would have amounted to deleting Section 80 of the Industrial Property Act of 2001, which covers compulsory licensing. Without laws allowing compulsory licensing, the government would have been left with no recourse to authorise the production or even importation of generic copies of patented products without the patent-holder's consent. It would, for instance, have been forced to negotiate drug prices with brand name pharmaceutical companies rather than continue to purchase generic AIDS drugs from India, even in the context of Kenya's health emergencies.

Ahmed Ogwell, head of international health relations at the Kenyan health ministry, told Bridges he was relieved by the outcome. He praised the parliament "for seeing the huge public health problem that these amendments posed and therefore rejecting the proposals." Ogwell added that "we shall remain vigilant on [these] matters… because we know that vultures who smell profits to the detriment of public health abound out there." It remains unclear how the proposals had found their way into the proposed legislation before parliament. Peter Munyi, a Kenyan intellectual property expert, told Intellectual Property Watch that amendments to the Industrial Property Act would normally come under the remit of the Ministry of Trade. However, it had denied responsibility, as had the Kenyan Industrial Property Institute (KIPI).

On the question of the source of the proposed amendment, Ogwell said "it is not clear," noting that the government had started internal investigations "to identify the source." Munyi thought the interests of those who would gain politically or commercially from the amendments were ultimately telling. "From previous experience, it is perhaps not necessary to continue asking that question," he hinted darkly.

Public health-related provisions in the Industrial Property Act of 2001 have kept lawmakers busy in recent years. Rules on 'parallel importation', which refers to the importation of cheaper brand products from other countries, were controversially deleted in 2002, only to be later reinstated. Proposed amendments on compulsory licensing and parallel importation re-surfaced in 2005 and 2006 but were delayed. Unlike compulsory licensing, parallel importation was not part of the proposed legislation that was defeated last week.

ICTSD reporting; "Kenya Rejects Bid to Remove Government's Compulsory Licensing Flexibilities," INTELLECTUAL PROPERTY WATCH, 14 September 2007.