Imagine waking up on the wrong side of the bed. Your skin looks yellow and you start feeling blue. Abdominal pains make you cringe, despite never having binged. The family doctor rules out jaundice and draws a blank. Your hospital-next-door churns out the blood report and you anxiously gaze into the diagnosis: “Tested positive for Hepatitis C”. You become the latest addition to a pool of around 130 million across the globe. Initially drained of every modicum of hope, you leap in joy after stumbling upon a revolutionary drug called Sofosbuvir. A 12-week regimen is all it would take to get rid of the disease for good. The question is: Can you afford it?
Surge pricing
A new WHO-led study published by PLOS Medicine reveals that there is a major disparity in the pricing of Hepatitis C drugs across 30 countries. It further highlights the fact that they are priced at highly prohibitive rates. The final report is a result of a long and intensive research effort by Swathi Iyengar, Kiu Tay-Teo, Peter Beyer, Stefan Wiktor, Kees de Joncheere and Suzanne Hill from the WHO along with Sabine Vogler from the WHO Collaborating Centre for Pharmaceutical Pricing and Reimbursement Policies.
These researchers conducted an extensive examination of the ex-factory price of a 12-week regimen for Sofosbuvir. They concluded that “the median nominal ex-factory price of a 12-week course of Sofosbuvir across 26 OECD countries was US$42,017, ranging from US$37,729 in Japan to US$64,680 in the US.” Furthermore, they claim that even this data is conservative since they did not take into consideration other external cost factors such as “supply chain mark-ups and other costs such as the cost of diagnosis, daclatasvir, ribavirin, and health service costs.” I’ve reproduced an extract of the price-comparison stats below.

Indian buyers’ club

In the face of such gut-wrenching prices prevailing abroad, it is no surprise that Australian resident Greg Jefferys endeavored to take treatment for Hepatitis C in India. The Caravan carried a brilliant piece featuring Jefferys’ inspiring quest for an affordable treatment. Jefferys reckoned that instead of paying $84,000 for a course in Australia, he’d get the same course for $900 in India with the total expense adding up to $3,000 after including travel, stay and other expenses. Having arrived in Chennai, he found that Gilead’s anti-diversion measures allowed access to the next bottle of Sofosbuvir only after the last is depleted over a month. Nevertheless he managed to pull a rabbit out of his hat and arranged for three bottles of Myhep, Mylan’s generic version of Sofosbuvir, for a payment of Rs. 30,000. Jefferys went on to found a not-for-profit international buyers’ club for helping people like himself get cheap access to Sofosbuvir from India. He has extensively blogged about his experiences here.

Cheap at what cost?

The Times of India (TOI) recently carried a piece on the escalation of drug prices in India. TOI reports that according to an editorial in the Lancet Medical Journal, Gilead’s VLAs “prohibit from supplying to several middle-income countries with a high burden of HCV disease, which are home to over 50 million people, and high-income countries—a market where Gilead presumably wants to be able to determine the price”. Additionally, the Caravan piece reveals that Gilead egregiously requires that “the bottles be sold only to patients who could provide “proof of identification, citizenship and residence.”

Most of these concerns would have been nipped in the bud had the drug been unworthy of patent protection in India. In fact, Deputy Controller Hardev Karar had rejected Gilead’s patent application for Sofosbuvir mainly on the ground that it fell short of satisfying the Section 3(d) test. But Karar was left with a sour taste in his mouth after the Delhi High Court ordered a fresh examination of Gilead’s application.

Last nail in the coffin

The IPO’s recent decision to clear all opposition proceedings against the Sovaldi application. Prof. Shamnad has torn this decision apart inter alia for a flawed application of Section 3(d). Nevertheless, at present this means that patent owner Gilead has the complete power to stub out all generic competition. Furthermore, what is to stop Gilead from doing a Martin Shkreli for Sofosbuvir in India; especially since it is public knowledge that India is the hottest destination for accessing the drug?

Way out

A study published by the Oxford Journal of Clinical Infectious Diseases has made a staggering revelation: “the cost of production of Sofosbuvir is US$68–US$136 for a 12-week course of treatment based on the same manufacturing methods used in the large-scale generic production of HIV/AIDS medicines”. These findings stand unchallenged. Generic companies, which are not part of the Gilead’s VLAs, will have complete authority to capitalize on the generic manufacture of Sovaldi if the Delhi HC decides that Sofosbuvir is unworthy of patent protection.