Peru: Patents vs public health (Part I)

Recent publications by the Peruvian media challenge the role and procedures that the Intellectual Property Institute (INDECOPI) does have in regards to the granting of patents in the area of medicines.

The news comes after the ‘Associations of patients living with HIV / AIDS’ reported the rationing of antiretroviral in the Ministry of Health (Minsa). The Peruvian newspaper La Republica highlights:

“Who rules health? The Mina fights alone against a pharmaceutical, MEF [Minister of Economy] and MINCETUR [Foreign Trade and Tourism] to declare of public interest Atazanavir, a Peruvian antiretroviral that costs 25 times more than in Bolivia because a patent. This case, along with a recent injunction that left without drugs patients with myeloid leukemia, demonstrates the consequences of a patent system that acts without technical review of the health sector and whose victims are patients.”

Indeed a very strong headline that has brought a debate between the patent system and the health sector. The newspapers reports that both MEF and Mincetur oppose to the grant of a compulsory license for a drug [up to today Peru has never granted a compulsory license for a medicine]. It notes cases from Brazil and Ecuador regarding the grant of compulsory licenses for antiretroviral.


The case is about a Peruvian patent granted to pharmaceutical Bristol-Myers Squibb for sulfate Atazanavir which runs until 2019, and the process has been rejected by four countries of the region (Brazil, Colombia, Uruguay and Venezuela) due to lack of inventive step. It continues to argue that despite of Peru using the same law as Colombia, Bolivia and Ecuador (Andean Decision 486), these countries have rejected patents that Peru has granted. Therefore “granting a patent on a drug that does not have the merits, incurs on millionaires cost in our health system, which is forced to buy from a single bidder.”

The newspaper recalls that in 2012, following a complaint by the Association of National Pharmaceutical Industries (ADIFAN), INDECOPI revoked a patent granted to pharmaceutical  Elly Lilly Laboratory for Olanzapine, a medicine used in the treatment of schizophrenia. The ground for the revocation was based on lack of novelty and inventive step. It also noted a similar case back in 2007, were the patent process for Gemcitabine (Gemzar), a chemotherapy, and was also revoked by INDECOPI.

What is sought?
According to the report INDECOPI does not ask technical opinion to the Ministry of Health before granting a patent on a drug. This should be done as to protect the public interest. It gives the example of Colombia, where there is an advisory body that gives opinion before granting a patent. INDECOPI examines “whether a drug, component or process is new, has inventive step and industrial application.” INDECOPI is unable to verify the effectiveness of the drug nor the public interest.

Patent as a monopoly against public health
This is not the first time that newspapers has reported over INDECOPI’s function and the health sector. Back on March 18, the newspaper La Republica criticized INDECOPI’s action against EsSalud, a Peruvian importer. EsSalud offered the drug Dasatinib 20% cheaper than the one produced by Brystol Myers Squibb. The pharmaceutical brought an action to prevent the marketing of Dasatinib, for chronic myeloid leukemia which it owned a process patent since 2007. INDECOPI granted to the pharmaceutical a preliminary injunction and the drug was seized.

Source La Republica.

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