IMATINIB, marketed as Glivec or Gleevec, is a medication used for the treatment of chronic myeloid leukemia (CML), gastrointestinal stromal tumors (GISTs), and other cancerous conditions, being of great help to people suffering from these diseases.
This medication is covered by an invention patent, whose holder is the Swiss multinational company NOVARTIS, which carried out the patent registration procedure before the Superintendency of Industry and Commerce, which by means of a resolution denied the granting of said patent; however, that decision was subject to a contentious administrative action with the means of control of nullity and restoration of rights, where the Council of State in a highly controversial ruling ordered the granting of the patent to NOVARTIS until 2018.
Having the exclusive exploitation of the aforementioned patent, NOVARTIS initiated multiple lawsuits against the companies that at that time marketed the medication, since with the patent in its possession, those companies had to request use licenses from NOVARTIS to market the medication.
Due to the foregoing, NOVARTIS currently has no competition in the market, resulting in the high prices at which the medication is marketed, a price that the Colombian health system has had to bear, given that in the last six (6) years since the patent was granted, it had to pay around three hundred ninety-six million nine hundred sixty-two thousand pesos ($396,962,000,000) for the medication. This situation has led Health Service Providers to wait for patients in need of treatment with the medication to file tutela actions and contempt proceedings to obtain it.
All this problem led the Ministry of Health, headed by Dr. Alejandro Gaviria, to seek different measures in order to reduce the price of the medication and thus make effective the right to health of patients who need it; for this purpose, a series of meetings were held seeking NOVARTIS to reduce the price of the medication, without positive results.
Finally, on the seventeenth (17th) of February 2016, through a recommendation of the technical committee of the Ministry of Health, we witnessed an unprecedented stance in the country, clearly for the benefit of patients and for the consolidation of the right to health, since the possibility of declaring the invention patent owned by NOVARTIS of PUBLIC INTEREST was pointed out, which could give the Superintendency of Industry and Commerce the possibility to grant compulsory licenses for the commercialization of IMATINIB in compliance with article 62 of Decision 486 of 2000.
It is then a matter of two rights: on the one hand, the fundamental right of patients to health, materialized with the effective procurement of the medication that allows them to continue living in dignified conditions, and on the other hand, the right of the multinational company NOVARTIS to the exclusive exploitation derived from the patent it holds.
Thus, it is vital that a proportionality and reasonableness test be conducted on this case, weighing both rights, and in accordance with jurisprudence and international treaties, our country takes all pertinent measures in case the winner is, ultimately, the Right to Health of Colombians (declaring Novartis's patent of public interest), given that a subsequent lawsuit by the Swiss company against the Colombian state for that decision is foreseeable. For from the point of view that the Swiss company will obviously maintain, that decision would not only imply the violation of the economic rights recognized by the patent, and therefore by the Colombian state, but also the violation of the Agreement between THE REPUBLIC OF COLOMBIA and the SWISS CONFEDERATION ON THE PROMOTION AND RECIPROCAL PROTECTION OF INVESTMENTS.
In that sense, the arguments and evidence supporting the Colombian state's decision to opt for the right to health must be supremely solid so that the remedy (declaring the patent of public interest) does not cost more than the disease (IMATINIB medication).