Patent Law

Nicholas Wadhams writes today, July 7, 2009, for Intellectual Property Watch:

Three HIV/AIDS patients in Kenya announced Tuesday they will petition the country?s Constitutional Court to declare a new anti-counterfeiting act illegal because it could deny them access to generic medicines. The move, which has the support of public health groups across the country, seeks to have the 2008 Anti-Counterfeiting Act made unconstitutional on the grounds that it could rob them of their right to life.

The anti-counterfeiting law, which is aimed at cracking down on the fake batteries, pens, drugs and cosmetics flooding into Kenya, has been criticised by the NGO community and importers of generic drugs because of the way it defines counterfeit products. They say its definition is so vague that it could include generic drugs. The act could also allow a pharmaceutical company to charge patent infringement in Kenya even if its patent is not registered there.

?Generic medicines are legitimate exact copies of their brand-name original. They are not counterfeits,? the three said in a statement read out at a news conference. ?They should not be confused with counterfeits. The manufacturing of generic medicines is not a criminal offence.?

Advocates of the new law, including the Kenya Association of Manufacturers and brand-name drug-maker GlaxoSmithKline, argue that its language is clear and they have no intention of trying to block the import of generic drugs. The act has not yet taken effect but is expected to do so within weeks.

That has not persuaded public health advocates in Kenya. They cite more than a dozen cases in recent months that saw generic drugs made in India and bound for South America and elsewhere in Africa impounded in European ports. Customs officials argued that the drugs violated European patent rights.

Read the full article here.