An election is not what the AmeriKat ordered...

Next Thursday is Thanksgiving.  It is one of the AmeriKat's favorite holidays:  no gifts, no pressure, just food and friends.  Although she seldom gets to go home to celebrate it, she makes a point of marking the day.  Last year she was eating burgers with her make-shift family in London while making them take it in turns to say what they were thankful - something that is generally excruciating for non-Americans while devouring french fries and milkshakes.

As a nation, and despite the ravages of the Brexit saga, there is a lot to be thankful for in the UK.  Top of that list is the NHS.  Before the arrival of Obamacare, making choices of whether to pay the rent or pay for life saving medicine was a daily reality for many Americans.  Despite improvements, those battles still continue in the US.  But thanks to the NHS, that impossible question - so far - is not one most in the UK have had to answer.   Free and open access to healthcare is crucial for the prosperity of a nation.  But such services come at a cost.  The NHS functions because the tax payers and the Government pay for it - the people, the equipment, the drugs all cost money. 

Earlier this year the US Congressional hearings into drug prices in the US hit the headlines.  It was only a matter of time before the debate reached the UK.  Now more than ever, the upcoming UK election is politicizing the NHS, patents and the price of drugs.   Drug prices and the patent system, rather than choices by the UK Government on NHS funding, seem to be in the firing line.  In September, the UK Labour Party leader, Jeremy Corbyn, stated:

“We will tell the drugs companies that if they want public research funding, then they will have to make their drugs affordable for all.”

In then launching their Medicines for Many document, the Labour Party pledges to break up the monopolies.  In the document, shots are fired at the pharmaceutical industry and the Labour Party's take on the patent system in a call-out box entitled "Patents and their impact on drug prices" (page 9) which reads:

"This granting of market exclusivity is the largest public subsidy to the pharmaceutical industry.  It means that companies are often paid many times above the costs of production and should  be incentivised to undertake further innovation. For example, rather than the NHS paying  for medicines near the cost of production, as would be the case in a competitive market, the  granting of a monopoly allows the industry to keep prices artificially high for the duration of the monopoly. In reality patents provide excessive financial rewards to patent holders – a recent WHO report found that for new cancer medicines using the highest R&D cost estimates it took an average of five years for companies to completely recoup risk-adjusted R&D outlays, and the high prices set by companies present significant patient access barriers.

Furthermore, pharmaceutical companies frequently seek to extend patent terms beyond the minimum 20 years, a practice known as ‘evergreening’.  They have also aggressively lobbied for TRIPS-plus provisions in bilateral and regional trade agreements as a means of strengthening monopolies beyond what is required in the TRIPS agreement."

Amongst numerous proposals, the Labour Party proposes to:

1. Resurrect compulsory licensing provisions or issue crown use licences when the "NHS isn't being offered an affordable price for medicine" (see page 21)
2. Issue stricter conditions on government funding of R&D contracts, i.e. by mandating "open licensing" or patent pools (see page 26) 
3. Retool the incentivization model via delinkage (see page 27)
4. Create  "democratically owned pharmaceutical companies"(see page 33)
5. Enact legislation to "fully open up pharmaceutical lobbying to scrutiny" (see page 33).  

On the other side of the political spectrum, a report by the NHS Confederation (which represents most hospital trusts in England) entitled "The NHS and future free trade agreements" states that the NHS and patients will be faced with billions more to pay for drugs.  This would be the price of a post-Brexit trade deal between Boris Johnson and Donald Trump.  The NHS Confederation's report states on page 9 that:

"The USA objectives seek provisions on protection of intellectual property rights that reflect current USA legal standards, which are generally more favourable to rights holders than EU standards.  Longer patents, extended data exclusivity rights and stringent enforcement measures against perceived infringements would favour companies who develop and market branded medicines.  This could delay patient access to cheaper generic medicines, with knock-on impacts (supply and cost pressures) for health and social care services. 

The WTO TRIPS (trade-related aspects of IPR) agreement allowing (in certain circumstances) generic versions of medicines still under patent can be obstructed by clauses in FTAs restricting the use of TRIPS flexibilities to emergencies only, affecting patient/health system access to cheaper generic medicines. "

So what happens next? Cue next Wednesday's UCL IBIL Innovation debate where experts  - who understand the patent system, innovator and generic business models, drug pricing, cost of drug discovery and public health systems - will explore these very issues.  The IBIL event's blurb explains: 

"How do we devise a suitable incentive scheme for the development of new pharmaceuticals and innovative health treatments? Traditionally, this has been the role of the patent system, but increasingly, claims are made that this focusses R&D efforts in the direction of greatest profits, rather than towards those areas of greatest public need. Patents – it is said – encourage the antithesis of open, collaborative research and render many new drugs unaffordable despite rising patient need.

While some advocate patent pools to ensure access to essential medicines or proffer prizes as a partial solution, others propose a Health Impact Fund. The topic looks likely to be a live issue in the forthcoming election. In September, UK Labour Party leader, Jeremy Corbyn asserted “We will tell the drugs companies that if they want public research funding, then they will have to make their drugs affordable for all.” Launching its ‘Medicines for the Many' policy document, the party pledges to ‘break patents’ by dusting off compulsory licensing provisions and making the very latest drugs available on the NHS via a public-owned generics company. Meanwhile, a recent report by the NHS Confederation suggests that the real price of Boris Johnson’s much touted post-Brexit trade deal with the USA is £billions on nation’s drugs bill. 

In its annual Innovation Lecture, UCL's Institute of Brand and Innovation Law has brought together a distinguished panel to identify the problems of the current patent-based system and to investigate whether open innovation is the potential solution. Join us to share your views and help us to shape the debate!"

The UCL IBIL debate will be chaired by Mr Justice Birss, with speakers including Dr Galit Gonen-Cohen (Head of Intellectual Property Law at Novartis, former VP and General Counsel, Europe, Teva), Professor Matthew Todd (Professor of Drug Discovery at UCL School of Pharmacy) and
Professor Adrian Towse (Visiting Professor at the London School of Economics and Director Emeritus of the Office of Health Economics of Oxford University).   Kick off is at 6PM in the freshly refurbished UCL Faculty of Laws. 

It is going to be an incredible event.  To register to attend, click here. 

On 31st May 2019, the Commission of the Economic Community of West African States (ECOWAS) launched its Regional Competition Authority – the ECOWAS Regional Competition Authority (ERCA). The ERCA was established to implement the Regional Competition Rules adopted by the ECOWAS Authority in 2008 to promote inter alia regional competition and regional integration.