WASHINGTON – HIV medications are somewhat unusual in that there is enough of a demand for them in the developed world to make developing such medications worth the biopharma industry's while. But the majority of the people who need them are not able to pay their asking price in the West – or rather, the national health systems of the low and middle-income countries (LIMCs) they call home are not able to afford the price tag.

And the XIX International AIDS Conference, which was held last week in Washington DC, is somewhat unusual in the strength of the voice that participants from those LIMCs have. In several sessions at the conference, individuals from a variety of civil society organizations voiced their concerns that the mechanisms, which have given millions of people in LIMCs access to AIDS drugs (though millions more remain untreated) may be failing.

Chief among their concerns were developments in intellectual property rights, and the effect they have on drug prices.

The fundamental issue with those drug prices, in turn, is that while biopharmaceutical companies are very interested in the emerging markets all they want, Brook Baker of the Northeastern University School of Law told the audience at one session, is to sell to the elites in those countries, who can afford to pay Western prices. And this leads to "a fundamental problem, because those countries can't afford monopoly prices for 80 percent of their population."

Baker said that "we have been lulled into a false sense of security because we have access to medications that are in fact under monopoly," namely, the first-line AIDS drugs.

But the 1995 Trade-Related Aspects of Intellectual Property Rights (TRIPS) agreement, which countries had to sign in order to join the World Trade Organization, gave second-line AIDS drugs much greater protections, and so "we face a future in which IP protection in the form of patent monopolies and data monopolies stand in our way."

By and large, speakers voiced no objection to the idea that pharmaceuticals can be patented. Several speakers did note that prior to the founding of the World Trade Organization in 1995, some countries, including Brazil and India, did not grant patents on pharmaceuticals because of their importance to public health. But the overall benefits of free trade were not questioned by speakers, at least not openly.

Speakers did, however, criticize the strategy of filing follow-on patents in which "slight modifications are being passed off as new molecular entities," Tahir Amin of the Intellectual Property Initiative for Medicines, Access and Knowledge told the audience. Such "evergreening," which can take the form of patents on new formulations and the combination of two ingredients into one pill, among others, do not provide significant advances over existing medications, and several speakers suggested that LIMC's would do well to reject them.

Another issue is bilateral or multilateral trade agreements whose provisions go beyond what is specified in TRIPS – so-called Trips-plus agreements. Kajal Bhardwaj an Indian HIV and human rights lawyer, told the audience that trade organizations tend to demand such agreements, even when exhorted by their own political bodies such as the European Parliament not to, and that such agreements threaten the broad access to medications in developing countries.

Currently, concerns over patents are only made more urgent by concerns over money. Developed nations – the U.S. chief among them – have chipped in large amounts of money to make the drugs affordable via public programs and public-private partnerships such as the President's Emergency Plan for AIDS Relief and the The Global Fund to fight AIDS, Tuberculosis and Malaria, or Global Fund for short, chips in. As the global financial crisis has dragged on, however, funding has been hard to come by as countries have cut back. Despite a $750 million commitment from the Bill and Melinda Gates Foundation in January, the Global Fund is below its target for funds, and its long-term future is uncertain.

Bill Gates said at the conference that despite his foundation's pledge, there is not enough money to treat everyone in developing nations. In his usual direct way, he added that "the world will decide how much those lives are worth."

If biopharmaceutical companies were the subject of criticism at the AIDS meeting, so too were the LIMC's. The WTO's 2001 Doha Declaration specifically affirmed that WTO members have the right to "protect public health, and in particular, to promote access to medicines for all" via mechanisms such as compulsory licensing and setting high bars for patents.

Baker noted that it is up to the countries themselves to have the political will to take advantage of that right: "It is simply not acceptable," Baker said, "that most low- and middle-income countries have not enacted the flexibilities that people fought so hard for them to get."