In another sign that Roche needs to act quickly to preserve their intellectual property rights, a recent report by the BBC says Taiwan has responded to rampant bird flu paranoia by starting work on its own version of the anti-viral drug, Tamiflu, without waiting for a license to the patent rights from Roche. Taiwan officials said they had applied for the right to copy the drug – but the priority was to protect the public. Several countries have asked Roche for the right to make generic copies of Tamiflu.

Taiwan says it will produce six kg of its version of Tamiflu to renew its stocks but said it will not market the drug commercially. They reported that a generic version of the drug produced by Taiwan’s National Health Institute is “99% akin to the Tamiflu produced by Roche.” 99%? So…well…what’s in that last 1%? That wasn’t mentioned but officials say they can make their version of the drug more quickly and at a lower cost than Roche.

I suppose this isn’t as bad as Brazil threatening to break the aids patents since, in that scenario, the drugs are available to purchase – Brazil just doesn’t want to pay for them. Here, supplies are not readily available and, if there were to be a start to a pandemic, stocks would not be available at any price.

I think Roche would be smart to just set out a blanket nonexclusive license for any and all takers. Like the PCR patents, the royalty and terms could be set at some bearable level and Roche could reap some revenue while avoiding all-out pandemonium. Then, no one could claim Roche has endangered public health or played favorites among countries or generic manufacturers. This could also prevent costly infringement litigation. Nearly every government is getting quite edgy about a possible flu epidemic and keeping too tight a grip on the Tamiflu patent rights could lead to the death of the golden goose. It will be interesting to see how this plays out.

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