Peru: Patents vs Public Health (Part II)

Building upon the previous post regarding the overview by Peruvian national press that patents restrict competition, the Peruvian Instituto Nacional de Defensa de la Competencia y de la Protection de Propiedad Intelectual (INDECOPI) answered back.

It starts by establishing that the Institute is in charge of ‘protecting intellectual property’ and as so “performs a thorough technical review of each patent application” done by specialists in the area who do have years of experience. The Institute follows “strictly defined legal requirements by current regulations (Decision 486 of the Andean Community Commission and Legislative Decree 1075) and by international treaties to which Peru is party.” By doing so it gives the example that between 2010 and 2014, half of pharmaceutical patent applications evaluated were denied. Andean Decision 486 provides that patents may be granted for inventions either product or a process, in ‘all fields’ of technology BUT not second uses [i.e. Swiss formula].

Moreover, INDECOPI notes that by administering this legal obligation it does recognize fundamentals right under the Peruvian Constitution. Its performance will always be in “safeguarding the judicial stability and rule of law in accordance with the Peruvian obligations in the Andean Community and the World Trade Organization.”

As you may recalled from the previous post (here), INDECOPI was encouraged to ask for technical opinion to the Ministry of Health before granting a patent on a drug (as the Colombian office does). This requirements was suggested as to protect the public interest. To this matter, INDECOPI notes that while there is no legal provision that established that for the granting of a patent in the pharmaceutical area, the prior technical opinion of another entity was sought, INDECOPI “recognizes the relevance to society's protection of the right to health” and also noted that under present patent legislation there are “measures that can be applied to access to medicines by the population”[i.e. compulsory license].

The exclusive rights generated a patent encourages investigations that lead to the creation of new products and procedures in the case of pharmaceutical development benefit the health of society and is one of the mechanisms that guarantees are made to continue investigating and investing in search for new drugs.

Then the note went on to target the criticism that in other Latin American products the same medicines have been denied protection. To this INDECOPI responds that the “granting or refusal of a patent in one country is not binding”. “ It then went to note that the compound Atazanavir bisulfate referred in the media while it a patent has been denied in countries like Brazil, Colombia, Uruguay and Venezuela, it has however been granted in countries like Chile, Argentina and Mexico.

Finally, INDECOPI “reaffirms its mission of protecting intellectual property, which includes legal measures which the competent authorities do have access to for safeguarding public health.”

Source INDECOPI.