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Patents and the Pipeline: Is Access Under Threat?

September 2011

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BMS does not enforce the exclusive marketing rights it holds on didanosine (ddI), stavudine (d4T) and atazanavir (ATV) in sub-Saharan Africa. Since 2001, it has entered into 11 "immunity-from-suit" agreements in respect of ddI and d4T; it has committed to entering into similar agreements with requesting companies in respect of ATV. In 2006, BMS granted royalty-free licenses to, and entered into technology transfer agreements with, two companies -- one in South Africa and the other in India -- regarding the production of generic ATV and its sale in sub-Saharan Africa.

On the one hand, this approach is an improvement on BI's: it has resulted in the licensing of an Indian generics company -- a member of the Clinton Health Access Initiative (CHAI) consortium -- with significant manufacturing capacity in respect of quality finished products and APIs. On the other, the limitation on the number of licensees has implications for competition and pricing; the best international prices for ATV still remain too high.

BMS's publicly stated position on intellectual property suggests that the company is open to following this approach in respect of pipeline products such as BMS-663068.

Gilead Sciences

Following the introduction in 2005 of patent protection on pharmaceutical products in India, Gilead began to enter into non-exclusive licensing agreements with a range of generics companies for the manufacture and sale of tenofovir disoproxil fumarate (TDF) and the fixed-dose combination (FDC) of TDF and emtricitabine (FTC).13 These agreements, which were concluded prior to any final decisions of the authorities in India regarding the relevant patent applications, apply both to finished products and APIs. As of April 2011, Gilead had licensed 14 companies: 13 in India and one in South Africa.14

The agreements permit the licensees to manufacture generic TDF and TDF/FTC in India and to sell finished products in India and an additional 94 countries,15 including a range of middle-income countries such as Thailand, Moldova, and various states in Central America and the Caribbean. Licensees are entitled to buy APIs from -- and sell them to -- each other, as well as to obtain APIs from Gilead's own supplier. All licensees are required to pay Gilead a five percent royalty on the sale of finished products.

The agreement between Gilead and the Medicines Patent Pool, details of which were released on 12 July 2011, follows a similar approach in respect of the company's pipeline products: elvitegravir (EVG); cobicistat (COBI); and the FDC of TDF/FTC/EVG/COBI ("Quad"). Under the terms of the agreement, Indian generics companies will be licensed by the Pool to produce and sell APIs (to each other) and finished products (to a list of countries). Licensees may also sell to countries in which compulsory licences for import have been issued.

In addition to the 95 countries already covered by earlier agreements, licensees will be able to sell finished TDF and TDF/FTC products in 16 more countries, including 7 in the Caribbean and Latin America, 4 in Eastern Europe and Central Asia, and 4 in the Pacific. But the geographic scope of the pipeline products is more restricted: 12 of the 111 countries are excluded from the COBI licence, with 3 of these countries also being excluded from the EVG and Quad licences.


Merck & Co.

Merck does not appear to have any coherent approach to licensing. That said, the company has -- in response to legal action -- licensed numerous companies for the production of generic efavirenz (EFV) products in, and/or the importation of EFV products into, South Africa. In addition, government-issued compulsory licenses in Thailand and Brazil have paved the way for the introduction of affordable generic EFV products. In India, there are no product patents on the drug and consequently at least six Indian companies are producing it currently.16,17

According to the MSF Access Campaign, Merck and the Institute for Research in Molecular Biology (IRBM)18 applied for patents on raltegravir (RAL) in a number of developing countries with generic drug manufacturing capacity, such as Brazil, China, India, and South Africa. IRBM was granted a patent on RAL in India in December 2007, which will expire only in 2022. Unless and until Merck is effectively compelled to license RAL to manufacturers in India and/or other developing countries with generic drug manufacturing capacity, access to RAL products will remain out of reach for the majority of those living with HIV in developing countries.

ViiV Healthcare

ViiV's voluntary licensing policy, in terms of which royalty-free licences are offered to generics companies to manufacture and sell all its current products and those in the pipeline, covers 69 countries: all LDCs, low-income countries, and sub-Saharan African countries. This policy also extends to the integrase inhibitor dolutegravir, currently being developed jointly by ViiV and Shionogi. As is the case with the BI policy, ViiV's does not cover middle-income countries outside of sub-Saharan Africa, including those with significant generic pharmaceutical manufacturing capacity; this limits the ability of the listed countries to import generic finished products and APIs.


Tibotec's Global Access Programme (GAP) -- which first addressed access to darunavir (DRV) and etravirine (ETV) -- was initially focused on sub-Saharan Africa and LDCs. This has been expanded with rilpivirine (RLV): prior to the drug's licensure in the United States, Tibotec granted multiple non-exclusive licences to generics companies (including two in India and one in South Africa) to manufacture, market, and distribute finished products. The Indian companies -- of which there are now four -- have the right to market in sub-Saharan Africa, LDCs, and India; South Africa's Aspen is limited to sub-Saharan Africa.

The agreements extend to the development, manufacturing, and distribution of two FDCs containing RPV: TDF/3TC/RPV and TDF/FTC/RPV. No agreement has yet been reached in respect of the relevant API: generic production of the single agent and/or the FDCs will require the purchase of the RPV API from Tibotec.

Tobira Therapeutics

Tobira is a private company that was founded only in 2006. On 22 June 2011, it announced that it had started a phase IIb clinical trial for the CCR5/CCR2 inhibitor cenicriviroc (TBR-652); the drug, therefore, still has two to three years of clinical development left to assess safety and efficacy in support of regulatory authority approval. Tobira has indicated that its access policies will be determined only after substantial completion of this clinical work.


  1. See Ellen 't Hoen et al., Driving a decade of change: HIV/AIDS, patents and access to medicines for all, Journal of the International AIDS Society. 2011 March 27;14:15.
  2. For more information on the impact of TRIPS on access to medicines, see 't Hoen et al., ibid.
  3. Ibid.
  4. India is not alone. Other countries -- such as South Africa and its partners in the Southern African Customs Union, Mozambique and Angola -- may have faced similar pressures. In this regard, see
  5. See[tt_news]=1700&cHash=2f6721d292.
  6. See
  7. Numerous companies are currently in negotiations with the Patent Pool. For further detail in this regard, see
  8. See International Treatment Preparedness Coalition and Initiative for Medicines, Access & Knowledge Briefing Paper, "The Implications of the Medicines Patent Pool and Gilead Licenses on Access to Treatment", accessed 11 August 2011 at But also see Krista Cox, Medicines Patent Pool agreement with Gilead contains flexibilities including termination provisions and severability of licenses, accessed 11 August 2011.
  9. This waiver of rights applies only to the production of the soft-gel capsule version of RTV for sale and use in South Africa.
  10. According to the MSF Access Campaign, Abbott applied for several patents on the solid dosage formulation and polymorphic forms of LPV/r and its constituent parts. A number of these applications were opposed by civil society organizations and generics companies. Opposition to the LPV/r soft-gel formulation patent application resulted in it being withdrawn; on 30 December 2010, the Indian Patent Office decided that LPV/r does not merit a patent under Indian law. For further information in this regard, see and
  11. See
  12. See
  13. The history of Gilead's Global Access Program (GAP) is available at
  14. Gilead's initial agreement with South Africa's Aspen Pharmacare was for the production and distribution of co-branded Viread and Truvada in Africa, using APIs from Gilead's supplier. In November 2007, Gilead and Aspen entered into a full licensing agreement with terms and conditions similar to those granted to the Indian licensees.
  15. The full list of companies is available at
  16. MSF 2011. Untangling the web of antiretroviral price reductions. 2011 edition. Accessed 23 June 2011.
  17. According to the MSF Access Campaign, there are concerns regarding the potential impact of a patent for the process of preparing form 1 of crystalline EFV that was granted in India in June 2005 -- it appears to protect a key process for manufacturing the drug. Opposition to that patent is ongoing.
  18. IRBM, which is based in Pomezia in Italy, is one of Merck's research sites.
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This article was provided by Treatment Action Group and HIV i-Base. It is a part of the publication 2011 Pipeline Report.
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