Chapter 9

Industrial Property: Competitive Weapon 2.0 (Case Study of Tenofovir) 1

9.1. Introduction

The Brazilian Law no. 9313 of 13 November, 1996 [BRA 96b], guarantees free and universal access to HIV treatment. Since 1997, Brazil has embarked on an extensive program of free and universal access to antiretroviral drugs (ARVs). The aim of this program is to try to establish a balance between respect for industrial property rights and social rights:

– industrial property rights in Brazil are particularly driven by the Industrial Property Law no. 9279 of 14 May, 1996 [BRA 96a]. This law was reformulated to comply with the minimum standards for the protection of intellectual property, which was laid down by the World Trade Organization (WTO) [BEL 01], [EST 01];

– respect for social rights guaranteed free and universal access to assistance.

The government has managed to significantly reduce the average annual cost of antiretroviral therapy from $6,240 per patient in 1997 to $1,336 in 2004. To achieve this, the government mobilized the state-owned laboratory Farmanguinhos1 and other public laboratories2 to launch the production of copies of ARVs which were not patented in Brazil before 1996, the ratification date of the Industrial Property Law no. 9279 and the country’s alignment with the agreement of the WTO, the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) [OMC 05a].

Today, the combination of two factors could result in a substantial increase in health ...

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