Patent wars raging over Aids cure
By Ben Sihanya Comment
Wednesday, December 17, 2003
http://www.nationaudio.com/News/DailyNation/Today/Comment/Comment171220031.html
Prof Arthur Obel announced on the eve of Kenya�s 40th independence anniversary that he had invented two HIV/Aids drugs. Lentura II, he claimed, will improve the immune status of HIV-positive patients by raising the concentration of CD4 cells, while Magenta will eliminate the virus and help minimisze risks of mutation. A third drug, Nectum Cygnul, is supposed to improve the general status of a patient.
This announcement, like similar ones before it, underscores five parameters in HIV/Aids research in Kenya. These are the political economy of Aids research; its transnational cultural politics; the health law and drug policy.
First, although the rate of HIV infection has reportedly declined in Kenya, Aids is still a major threat to the country�s survival, development and competitiveness. Accounting for about 700 deaths per day, Aids is undermining the country's productivity. And this is part of the context in which hope, hype, disappointment and controversy have attended about four announcements of breakthroughs in Aids research.
These include Kemron (1989), Pearl Omega (1996), the possibility of a vaccine from cooperation between the Universities of Oxford and Nairobi (2000-2); and Prof Obel�s recent announcement. These announcements have been made in a context marked by keen competition for an Aids cure.
The competition has been termed a patent-race, referring to the quest not only to secure intellectual leadership, or instant financial rewards, but also the desire to secure long-term proprietary and commercial control and advantage over innovation.
Second, Aids research has been undergirded by cultural politics. When D. Davy Koech of the Kenya Medical Research Institute (Kemri), Prof Obel and Dr Joseph M. Cummins, of Amarillo Cell Culture Center (Texas, USA) announced the invention of Kemron, many international organisations and western scientists promptly dismissed it as a useless concoction and at best a palliative. The late doyen of African science and technology, Prof Thomas R. Odhiambo, and others read cultural politics in the western attitude.
Transnational cultural politics of Aids research was also evident in the flawed collaborative arrangement between Oxford and Nairobi university scientists. The latter played a major role in the research that led to what was regarded as an Aids vaccine. In the process of pursuing patent protection, the Oxford researchers did not sufficiently recognise the Nairobi researchers. The terms of engagement in the strategic alliance between Nairobi and Oxford were only reviewed after serious popular, policy and academic discourse.
Third, national health law and policy as well as patent law have impacted Aids research. For instance, Prof Obel�s Pearl Omega was challenged by the medical profession and the Kenya Aids Society for, inter alia, not conforming to standards under Kenya�s health law and policy regarding clinical testing, efficacy, approval and registration of new drugs.
The Aids society went to court and claimed that its members (patients) would be harmed, and that Prof Obel�s representation that he had found a cure could be counterproductive as there might be recklessness based on false hope. Justice Gideon Mbito upheld Prof Obel right to process and distribute the drug. Thus, the judge made important pronouncements on the policy of Aids research: Prof Obel had taken great personal risks in researching a dangerous disease. Such researchers need incentives. The Court of Appeal upheld the decision (also on a technicality).
Fourth, issues regarding incentives and intellectual property have invariably arisen in the four major Aids drugs announcements. In Kemron there were two major contests of ownership and control. The first pitted Kemri (or scientific researchers) against traditional healers and herbalists who claimed a share because they had allegedly contributed biological materials (herbs) and their traditional knowledge.
This is a major debate in the North-South relations regarding intellectual property and piracy of biodiversity (or biopiracy). Second, there was a disputation between Kenya and Dr Cummins and his organisation.
Again, cultural politics led to an unsatisfactory result. How? Kenya quickly enacted the Industrial Property Act, 1989 (repealed and replaced by the 2001 Act), and the President launched Kemron without due regard to scientific and intellectual property rules on disclosure. On the other hand, Americans and others quickly dismissed Kemron.
Fifth, an Aids cure or vaccine is a potential goldmine. It is the next big thing. Biotechnology and pharmaceutical corporations have thus heavily invested in Aids research. And the trends in research illustrate transnational corporate hegemony and warfare.
These five parameters illustrate the need for circumspection. While the search for a cure or vaccine is a common concern of humanity, Kenya should take appropriate legal and policy measures. First, Kenya should redesign its health and innovation policy to promote research. For instance, doctors are currently underpaid and overworked, and have little time for research. Second, the Kenya Industrial Property Institute (KIPI) and related intellectual property organisations should work with Aids and other research organisations to promote innovation and awareness of intellectual property law.
Third, Kenya�s public sector should lead the processes of establishing capacity to publicise, process, manufacture, and distribute appropriate health innovations. Fourth, the Government and the public cannot afford to casually dismiss alleged innovations.
Dr Sihanya teaches intellectual property law, University of Nairobi.
BT Yahoo! Broadband - Save �80 when you order online today. Hurry! Offer ends 21st December 2003. The way the internet was meant to be.
