In the leaders’ debate on the BBC, Jeremy Corbyn repeatedly claimed that UK and US trade negotiators discussed extending the duration of medicines patents, increasing the cost of medicines to the NHS. This is a claim Corbyn has made many times during this general election campaign. He bases the claim on the leaked US-UK trade negotiation documents he flourished at a special press conference.
Labour claimed at that conference that those documents proved the Conservatives intended to sell off the NHS to the US. Their claim, however, has been widely debunked – nothing in the documents indicated any intention to sell the NHS or adopt a US-style health system.
But the claim that the US wants to achieve higher drugs prices through making patents last longer has persisted. It’s demonstrably and categorically wrong, resting on a basic failure of understanding on the part of Corbyn and his team as to how medicines patents work and what the current UK system is. Let’s see why.
Their claim rests on a section in the trade documents (page 119 and following of the main document) discussing “patent extension”. But this is not a proposal for a change in the UK’s patent system. Rather, it is a piece of technical jargon referring to something that the UK already does.
In both the US and UK, the term of a patent is the same: 20 years. However, medicines can take many years to be authorised for sale, so instead of a 20-year patent meaning 20 years of exclusive sales, it might only grant 10 years or less.
For this reason, in both the US and UK (via the EU), there is a system for extending the period of intellectual property protection for medicines. In the US that’s called “patent extension”. In the UK (via the EU) it’s called “supplementary protection”. But the effects are the same.
Whether the provision for extended protection comes via “supplementary protection” or “patent extension”, the maximum length is the same: five years. (It isn’t guaranteed to be five years, though. That depends on things like how long into the patent marketing authorisation was granted.)
When one has “talks about talks” about a free trade agreement (FTA) such as the UK and US did in 2017 and 2018, the obvious and natural place to start is with matters that always arise in FTAs.
Extended protection of medicine patents has featured in most of the big FTAs of recent years. For example, patent extension provisions appear in: NAFTA, EU-South Korea FTA, EU-Canada FTA (CETA), EU-Japan FTA, draft EU-Mercosur FTA. So if you are going to discuss any modern FTA, you discuss its medicine patent extension provisions.
In the case of the US-UK “talks about talks”, the discussion around patent extension provisions was pretty mundane since there wasn’t much to talk about – we already have virtually identical systems for that. The text in the trade documents noted that we had the same rules and then moved on.
So the discussion around “patent extension” in the leaked documents was not a discussion about making UK patents longer. It was a discussion that noted that the systems the UK and US already have for supplementary pharma patent provision are equivalent. Nothing more to it.
Corbyn should not be able to repeat this claim unchallenged. He and his team have simply failed to understand what the current UK drugs patent system already is and what the relevant jargon means.