In the face of international and domestic pressure, the United States has conceded that South Africa and other developing countries can break international patent agreements to obtain cheaper versions of anti-HIV drugs.
American trade representatives made the announcement in advance of the meeting of the World Trade Organisation (WTO), which opens last Friday in Qatar, where intellectual property rights (Trips) are high on the agenda.
US delegates and those from other countries with a large pharmaceutical industry, notably Switzerland, Japan and Australia, are hoping that the move will head off a wider attack on Trips which is being launched at Qatar by Brazil and 50 other developing countries which have been hit hard by HIV.
Historically, the US has been a staunch supporter of patent laws protecting pharmaceuticals, arguing that they are essential to protect costly drug company research. Last year the US announced it would take action against Brazil under US and WTO law, if it manufactured generic versions of HIV-antivirals. The US said that although it would mean that 100,000 Brazilians would lose access to some antivirals, in the long run it was "tough love" and would save more more than it cost by protecting HIV drug research. The US eventually dropped the threat of action saying it preferred to resolve the dispute with negotiations.
However the US position was exposed when it announced that, in the face of the current anthrax scares, it would invoke a clause in international patent law allowing a country to break the Trips agreement "in the face of a national emergency or other circumstances of extreme urgency." Although the US reached agreement with Bayer, manufacturer of the anti-anthrax drug Cipro, Brazil accused the US of "double standards" with spokesperson Jose Viana saying that the US "became our ally when [they] threatened that patent" adding that the US had attacked the patent in the national self interest, saying "why can't others do the same?"
Under the US plan, South Africa and other poor countries, would be allowed a five year moratorium from the restrictions of Trips to manufacture or obtain generic versions of drugs to fight HIV, tuberculosis or malaria. In theory, Cipla, which copies HIV drugs without the patent owner's agreement, could commence manufacturing its generic HIV drugs in southern African countries for sale locally and to other developing countries.
The row over drug access has been further fuelled by an article in one of America's leading medical journals, the Journal of the American Medical Association, which argues that it is poverty not patents which prevents the world's poorest from obtaining anti-HIV drugs.
The article revealed that the vast majority of patents for anti-HIV drugs in Africa have not been taken out by drug companies, with only 22 per cent of the 795 theoretically available across Africa taken out, and that poverty is the main reason why HIV drugs are not being accessed.
Activists have been infuriated by the article, pointing out that it ignores their successful struggle to drive down the cost of antivirals in South Africa from $10,000 a year per patient, to $350 a year. However, this is still much more than millions of the world's poor with HIV can afford.