On 25th April 2013, AIDS Law Project (ALP) organised a workshop in celebration of the World Intellectual Property Week. The workshop featured an interactive key note presentation from the Chief Patent Examiner of the Kenya Industrial Property Institute (KIPI), an inter-universities debating session and an audience discussion. Focus was on Intellectual Property (IP) and access to medicines in developing countries. This was related to the theme for this year’s World IP Day – Creativity: The Next Generation. The event was organised at Strathmore University and hosted by the Center for Intellectual Property and Information Technology (CIPIT).
Dr Isaac Rutenberg, the Director of CIPIT and Jacinta Nyachae of ALP, welcomed the participants to the event. It was their general sentiments that the challenge now lies with the youth to change the status quo. It was noted that the greatest challenge facing IP currently relates to balancing the various competing interests: interests of innovators and creators versus the public interest. On the one hand, IP was identified as an important factor in promoting development, new information, research and development (R&D); protecting innovators, researchers, inventions, among others. On the other hand, IP has had negative consequences especially in the health, agricultural and public sanitation sectors. How to balance these interests was the subject of discussion, especially in relation to access to medicines and promotion of human rights.
Mr David Njuguna, the Chief Patent Examiner at KIPI gave an informative and incisive keynote address. He expressed the opinion that the effect of innovation and technology is evident. He was categorical that the explosion of the knowledge economy has placed young people at an advantaged position in developmental issues. He emphasized the need for continued R&D especially in the medical field. He noted that the resources needed are massive but it would be scary to mankind if there were no medicines. He discussed patenting generally and in relation to public health especially access to medicines and the ongoing debate on generics. He identified some of the challenges facing the IP regime in Kenya as follows: first, that the courts are experiencing problems in dealing with IP related cases; and second, that there was inadequate R&D in Kenya.
The debating session was an intriguing one and centered on the following question: how does the Novartis (India) and the Patricia Osero (Kenya) cases affect public health in developing countries. The moderators were Mr Paul Ogendi, Programme Manager at ALP and Ms Sarah Ochwada, an entertainment and sports lawyer. The teams were composed of four (4) members drawn from various institutions including Mt. Kenya University, Strathmore University, Kenyatta University, and the Kenya School of Law, among others.
The following issues emerged from the debating session:
i) That the determination of the cases was a big win to the right to life, right to highest attainable standard of health and access to medicines. And that an important moral question was factored by the judgments. On the other hand, it was argued that the cases elevated the rights of some parties to the detriment of others; the public versus innovators. For example, that the right to property is ignored. The opposing side thus tied the right to life to the right to property: that one’s right to life is greatly affected by the denial of his/her right to property.
ii) That the strict interpretation of laid down criteria for patentability was plausible, including a strict interpretation of the TRIPs agreement. The “originality” test was considered in the Norvatis case and evergreening rejected. On the other hand, the opposing side was of the strong opinion that such a strict interpretation discourages innovations.
iii) That the Patricia Case breathes life to the 2010 Kenyan Constitution. And that the case upholds the high standard set by the Constitution as regards protection of basic human rights in Kenya.
iv) That the decisions (especially the Norvatis) empower developing countries to protect the interests of their citizens. A question thus arose: between public and commercial interests, which one overrides the other? This was subject of intense debate.
Patricia Asero of the Patricia Asero case, who was present at the debate, expressed the opinion that over 700 people die daily (an equivalent of 13 buses) due to HIV/AIDS and related infections. She urged activists to continue the push for TRIPs flexibilities to be integrated in our national laws.
The debate concluded with participants giving several recommendations aimed at ensuring that access to medicines is enhanced in Kenya. These included: first, that the government plays a greater role in promoting R&D; second, that the TRIPs Agreement flexibilities ought to be integrated in our laws; and third, that a balance should be stuck between commercial and public interests in relation to IP and access to medicines.
The Results of the intense debate were released at the IP Picnic which was held a day after at the Railways Club in Nairobi.The three best orators some of whom have been offered a one month long internship include the following:
1. Mr. Collins Wanjala
2. Miss Dianah Njeri Mureithi
3. Mr. Mugambi Peter Muhavi