Convervative Compassion

When Sara Aviel talks about Botswana, her voice is burdened by bewilderment
and helplessness. The Davenport junior spent last summer studying in the
sub-Saharan
African nation, which has a rate of hiv infection well above 30
percent—the
highest in the world. But even as she rattles off death rates and recounts
harrowing stories of her encounters with aids, she frequently stops,
frustrated
with her inability to express or confront the magnitude of the problem.
“People
I knew would go to funerals every weekend,” she remembers.
“And
even though they would never say that it was from aids—they always
said it was tuberculosis or pneumonia or something—you just
knew….”
After returning to Yale last fall, her sense of paralysis became a call
to action. Aviel scoured the undergraduate community for a venue for
international
aids activism with little success. Finally she contacted the Center for
Interdisciplinary
Research on aids—only to find out that there were “no plans to
be involved in any advocacy/activism work in Africa” and that the
center’s
“involvement in Africa is minimal at the moment.” It
wasn’t
until she read a January 28, 2001, article in The New York Times Magazine
called “The World’s aids Crisis is Solvable: Look at
Brazil” 
that Aviel realized there was a viable avenue for action so close to home.
“There was one line in the article about Yale owning the patent to
an
important aids drug,” she recalled. So she approached several
professors
to see if anyone knew anything about it, but again came up empty. And then
the wave hit.
On February 20, Aviel received an e-mail from Marco Simons, a third-year
Yale law student. The message was simple: Yale owned the patent for d4T, a
critical and expensive antiretroviral medication which impedes the spread
of hiv, and a group of students was organizing to put pressure on Yale to
make the drug available at low-cost in South Africa. Simons had heard from
a Harvard classmate-turned-aids activist, Toby Kasper, who works for the
international
medical aid organization Doctors Without Borders  (dwb) and was
leading
the charge to find a cheap source of d4T for South Africa. Kasper and his
forces had already unsuccessfully appealed to Bristol-Myers Squibb, the
Manhattan-based
pharmaceutical giant to which Yale has exclusively licensed the production
and sale of the drug. Now they were turning their attention to Yale
itself.
Simons ended his e-mail with one small request: “For the moment,
this
is not for media consumption.” But less than a month later, the
issue
would be making headlines around the world, culminating on March 15 with a
fulsomely congratulatory announcement by The New York Times, “Maker
Yielding Patent in Africa for aids Drug.”

4T, or stavudine, constitutes one-third of a drug cocktail that has proven
remarkably successful in treating hiv-positive patients. The compound is
an
antiretroviral, meaning it prevents hiv from reproducing and delays the
onset
of aids, thereby allowing patients to survive for decades after
contracting
the virus. Though it was first synthesized in a cancer study at the
University
of Michigan in the 1960s, interest in d4T was not renewed until the global
aids epidemic flared up in the 1980s. In 1986, two Yale doctors, William
Prusoff
and Tai-shun Lin, received several million dollars of funding from the
National
Institutes of Health and other sources—Bristol-Myers among
them—to 
investigate whether the compound could be used in combating hiv. When
experiments
in Yale pharmacology labs proved successful, the University quickly
patented
the compound and sought out a pharmaceutical company to take care of the
development, marketing, and distribution of the drug. Bristol-Myers had
“right
of first refusal” because of its help funding the project, and,
naturally,
the company jumped at the opportunity.
In 1994, d4T hit the shelves under the brand name Zerit. us newspapers
praised
the low cost of the new drug, which would be offered at $6 a day. But this
still meant that a year’s supply of  Zerit would cost almost
$2000,
more than the per capita income of almost every African nation.
The high price of aids drugs in the developing world has elicited
considerable
international attention—and frequent outrage—in the past two
years.
Emotionally charged articles in publications from The Economist to Mother
Jones have highlighted the difficulties of treating aids in poor
countries.
International ngos have called on the developed world to help provide
treatment
for hiv-positive patients who can’t afford the $15,000-a-year drug
regimen
required to slow the spread of the virus and the onset of aids. The aids
activism group act-up headed a widely publicized campaign of civil
disobedience
at every one of Al Gore’s presidential campaign stops until he
agreed
that—contrary to previous statements in which he had toed the
pharmaceutical
company line—there is an urgent need for low-cost aids drugs in
Africa.
And, most forebodingly for pharmaceutical companies, Brazil and India were
often pointed to as models of how the developing world could deal with the
crisis: by ignoring patents and allowing cheap generic production of
medications.
South Africa has been a focal point in the struggle for affordable aids
medication. Not only does it have more cases of hiv than any other
country,
but, unlike most of sub-Saharan Africa, it has both a strong patent
protection
system and sufficient domestic infrastructure to develop its own
pharmaceutical
manufacturing if patents allow it—making South Africa a battlefront
for corporations and ngos. Toby Kasper coordinates dwb’s
“Access
to Essential Medicines Campaign” in South Africa and has emerged as
the spokesman and de facto leader of the mix of activists, officials, and
aids patients fighting for drug availability. Last fall, Kasper picked out
Bristol-Myers as a target. He sought to convince the company to
voluntarily
give up their rights to d4T in South Africa in order to allow for
inexpensive
generic production, knowing the effort was
quixotic. “Drug companies have always tried to protect their patents
to the bone,” he acknowledged. The company’s profits on the
drug
exceed $600 million annually, and there had never before been a case where
a pharmaceutical company had given up such a lucrative drug in a protected
market like South Africa. In fact, Bristol-Myers is one of 39
international
drug-makers currently suing the South African government for more
stringent
patent protection—despite the fact that sales of d4T in the country
are virtually nil.
But d4T was a special case: A university, not a corporation, had the
patent.
After a stream of letters from dwb beginning last November, Bristol-Myers
passed the buck to Yale, which itself profits some $40 million a year from
the drug.  So Kasper called up his friends in New Haven, sent a
letter
to the University, and set out to persuade, pressure, or shame Yale into
giving
up the rights to d4T in South Africa.

ike Aviel, Amy Kapczynski, a first-year law student, hadn’t done
much
in the way of aids activism at Yale before the movement for patent relief
shifted its focus towards the University. But in the past few years, she
has
worked for an international aids consortium in England and did research
for
a “60 Minutes” documentary on aids in Africa, which sent her
to a conference in Durbin, South Africa, last summer. There, she learned
about
her future school’s ownership of the d4T patent and met Toby Kasper.
When Kasper and dwb—which won the Nobel Peace Prize in
1999—set
their sights on Yale in January, Kapczyski and Simons were the first
people
contacted.
Kapczynski, who was described by a colleague as having “a radical
inside combined with a very rati
onal sense of how to get things
done,”
recognized a unique opportunity with far-reaching implications. “Up
to now,” she said, “it’s been activists fighting on the
ground and big corporations making concessions.” But in this case,
the object of pressure was a university rather than a corporation, and for
Kapczynski, Kasper, and their small squadron of activists, this was an
essential
difference. “Universities are a good point of leverage,”
Kapczynski
remarked. “They are an important pressure point, in part because
they
have student bodies that care about these things.” And, as Kasper
did
not hesitate to point out to Yale, the University has a stated objective
in patents and licensing to “pursue the benefit of society in
general.”
So, the campaign was initially kept quiet and private, reflecting
Simons’s
belief that “with University politics things tend to get done better
behind closed doors than in the midst of big public campaigns.”
Instead
of approaching Yale as they would a corporation, the coalition treated it
as a potential associate. “No one considered the University an
adversary,
but really more of a cautious partner,” Aviel said. “And it
was
our job to capitalize on this partnership.”
In February of this year, all currents of the movement were coming
together,
and the point of their convergence was Yale. dwb had focused its private
and
public efforts on the University; the issue of patents and aids drugs was
making the national editorial pages; and a small but informed coalition of
students began pleading the case to administrators, building an alliance
with
aid workers and patients who rely on d4T, and directing international
momentum
into key channels. “I don’t think we can take credit for
making
this happen,” said Aviel. “It was definitely global momentum
that we directed a little closer to home. We rode the wave of activists
around
the world.”

n February 14, dwb wrote a letter to Jon Soderstrom, the Managing Director
of the Office for Cooperative Research (ocr), which oversees patenting and
licensing for University studies. The letter called for Yale to issue dwb
a “voluntary license” so that it could obtain generic drugs
for
distribution in South Africa. That day, Kasper sent another letter to
Bristol-Myers
asking the company to support this request. The Yale students also wrote
to
University officials and issued a request, which was denied, for a copy of
the Bristol-Myers licensing agreement. Meanwhile, they were gearing up to
intensify pressure on Soderstrom, whom they expected would not initially
grant
Kasper’s request.
The effort received a boost when Cipla, an Indian pharmaceutical firm,
announced
that it would produce a generic version of d4T and sell it at a remarkable
1.5 percent of the cost of Zerit. Thus, when Yale did respond to dwb on
February
28—claiming, according to Kasper, “that they couldn’t do
anything” because of their exclusive license with
Bristol-Myers—the
issue was no longer quiet. The day before, Kasper and other
representatives
of dwb had visited Yale, issuing a public challenge to the University for
the first time.
From this point until the March 14 announcement by Bristol-Myers, exactly
what transpired between the University nd the pharmaceutical company is
confined
to speculation. Kapczynski called the negotiations “a murky
procession
of events.” The public request by dwb elicited a tentative
endorsement
from Dr. Prusoff, who still does pharmacology research at Yale.
“This
was not something I’ve worried about before,” Prusoff
admitted.
“But the problem was clearly presented.” On March 9, dwb sent
a second letter to Soderstrom. The message, according to Kasper, was
simple:
“If you are following your own licensing policy, you should do
something
about d4T prices in South Africa.” In an appeal to the OCR’s
profit-making
focus, the letter also pointed out that Yale had almost nothing to lose
financially
in granting a voluntary license for d4T.
The issue had also been picked up by GESO, Yale’s incipient graduate
student union, after Fran Balamuth, an MD/PHD student in immunobiology,
brought
the issue to the attention of the coordinating committee. For her, the
controversy
was about researchers’ rights. “D4T is intimately connected
with
what [GESO is] fighting for,” she maintained. “For a long
time,
geso’s been talking about the role of corporations in determining
research
and where it goes.” The union created a petition calling for the
release
of the d4T patent in South Africa and mobilized its sprawling grassroots
network.
Within a matter of days, Balamuth and others had collected over 600
signatures—including
one from Prusoff, the drug’s inventor. However, contrary to the
accounts
of geso activists, Soderstrom claims he never actually saw the petition
until
after the decision was made.
As both the public and private campaigns continued, Soderstrom remained
quiet. For the students and dwb, this seemed a sign of dubious activity on
the part of Yale and Bristol-Myers. Kapczynski and Simons were prepared to
escalate public pressure when the student body returned to campus after
spring
break. At this point, another international event raised the bar for
Bristol-Myers
and Yale: The drug manufacturer Merck announced that it would sell its
aids
drugs at cost in South Africa. This was unknown territory for the
industry,
but once it had made the step, it could only move forward.
Public pressure reached a critical point on March 12 when The New York
Times
printed an article on Yale’s unwillingness to relax the d4T patent
in
South Africa. Even Prusoff, who remains one of Yale’s most reliable
supporters on this issue and who shares in the pharmaceutical
company’s
profits from d4T, points to the public relations nightmare conjured up by
the article. “The most important thing was when The New York Times
picked
up that article and brought that forward,” he speculated. “I
think
that was a major factor in stimulating discussion between the Yale
administrators
and Bristol-Myers.” Kasper agrees with this appraisal. “There
was the article, and voila, things worked out. I don’t think it was
just coincidence.”
Soderstrom, however, maintains that these external factors had little
persuasive
effect. “Bristol-Myers was correct in saying that there were certain
things they couldn’t do without our permission,” he said.
“Both
they and the University moved at light-speed to make this change.”
And
as to criticisms that Yale refused to ever make publicly available the
discussion
with Bristol-Meyers and the contract itself? Soderstrom defends the
decision
as typical business policy. “The fact that we don’t negotiate
things like this in public says that’s not the way you get things
done
in corporations. We didn’t have all the answers, and we needed time
to talk to Bristol-Myers. We weren’t forced to do anything we
didn’t
want to do.” Yale and Bristol-Myers were simply “moving at the
speed of business,” and in mid-March, the process proved
fruitful.

On March 14, Yale and Bristol-Myers Squibb issued simultaneous press
releases:
The University, expressing its pride at having “helped prolong the
lives
of so many who suffer from aids,” said that it had removed all
obstacles
preventing Bristol-Myers from making d4T available at low cost in South
Africa;
Bristol-Myers, for its part, announced that it would make Zerit and Videx,
another aids medicine, available below cost in African countries, and that
it would not try to prevent cheaper generic versions of the drugs from
being
produced, imported, and sold in South Africa. “The company,”
the
announcement proudly proclaimed, &ldquo
;has no other patent rights in
Africa
which it will allow to prevent aids therapy there.”
Headlines around the world cheered the unprecedented move, lauding both
the University and Bristol-Myers. Yale enthusiastically patted the company
on the back. “Bristol-Myers came up with a more comprehensive and
far-reaching
solution than any other pharmaceutical company,” said Soderstrom.
“This
is unprecedented change, and they should be applauded for that.” In
this age of compassionate conseratism, the d4T announcement was the
perfect
plug: industry, government, ngo, and academy working together and ignoring
self-interest to find a humanitarian solution to an international problem.
And Yale and Bristol-Myers had emerged from the fray with no sign of
injury:
Neither had actually forfeited anything in the way of profits, they had
avoided
a potential pr debacle, and, in the process, they had taken the issue away
from the activist community. In a March 19 op-ed in The New York Times,
Dr.
Prusoff concluded, “I find it hard to see any pattern in all this,
except
perhaps that there is a moral urge among people that, however
coincidentally,
can sometimes bring results.”
At Yale, meanwhile, student interest in the issue was coming to a peak.
Kapczynski, Simons, Aviel, and a number of other students planned a
“teach-in”
to educate beyond the headlines. On April 2, over 250 students,
professors,
and other members of the community crowded into a room in
Linsly-Chittenden
Hall. The speakers represented every element of the struggle that had led
to the Yale-Bristol-Myers decision. Kasper spoke on the pandemic in
Africa,
highlighting the need for affordable medicine. hiv-positive South African
activists added a personal note. Asia Russell, who works for act-up
Philadelphia,
accused the us of “driving a coalition which was actually killing
people
with aids” and denounced this “state-sanctioned
genocide,”
proclaiming, “They did this because we demanded it.” Balamuth
discussed Yale’s patenting and licensing policy, calling for a
greater
role for researchers in such decisions, and highlighting geso’s
commitment
to the issue. Kapczynski matter-of-factly described the negotiations
process.
The lefty crowd, arriving late from the most recent anti-Free Trade Area
of
the Americas protest, extended an open invitation to the aids activists to
join them on a trip to Quebec City for the April 20 anti-globalization
protest.
There was a dizzying array of “actions” to take, websites to
consult, lists to sign, and people to contact. But even as the offshoots
of
the original campaign multiplied, those initially involved were not sure
what
their next step should be.

n the month since Yale and Bristol-Myers made their announcement, the
effects
have rippled. Yale has pledged its continued commitment to improving
access
to aids treatment in Africa: At an open forum in early April, President
Richard
Levin called for “a significant effort by Yale to help train people
to administer [d4T] in Africa” and claimed, “I’m very
committed
to this.” geso has kicked off an effort to give researchers more
voice
in how their discoveries are patented and licensed. Student radicals have
added access to aids medicine to their agenda. The media’s
fascination
with aids in Africa has become, if anything, more intense; a recent lead
article
in The New York Times highlighted the continued problem of access to
essential
medicines, issuing an implicit call to sustained action. Students at other
major universities—most notably the University of Minnesota, which
licenses the patent for another important aids drug to
GlaxoSmithKline—have
taken up the sort of fight first seen at Yale last month. And in early
April,
at the behest of un Secretary General Kofi Annan, six major pharmaceutical
firms—Bristol-Myers Squibb, GlaxoSmithKline, Pfizer, Abbott,
Hoffman-Laroche,
and Boehringer Ingelheim—declared their commitment to lowering
prices
and making aids drugs more widely available and affordable in the neediest
portions of the developing world.
But the people who hastened the change at Yale are cautious in their
celebration.
In fact, at this point, they are not even sure what the decision meant.
“We
don’t know what the outcome is,” Kapczynski admitted. The ocr
has only said that it amended the licensing agreement with Bristol-Myers.
“An exclusive license ensures that a company is diligent in
marketing
a product and doesn’t just put it on the shelf,” Soderstrom
explained.
“In order to do this, certain restrictions are put on the
agreement—we
had to remove those restrictions.” Bristol-Myers, in addition to
offering
drugs to unaids and the World Health Organization at a reduced (but still
far higher than generics) cost, has merely pledged not to fight back if
the
patent is violated. “This is a big step forward and it has a lot of
possibility,” Kasper said. “But drug companies often make very
grandiose announcements and don’t do anything on the
ground.”
For the moment, Kapczynski, Simons, Aviel, and other concerned students
are taking minor steps and doing their best to get their bearings. They
are
examining “the systematic problem of research being so closely tied
to corporate interests”, convening a forum (with some coaxing by the
dean of the law school) to educate themselves on how the licensing process
works, and in the preliminary stages of creating some sort of
University-wide
aids coalition. Still, Aviel said, “None of us know exactly how this
works or where it’s going.” And Kapczynski warned, “A
lot
of fortuitious things worked together to make this successful, but the
more
this becomes replicable, the more resistance there will be.”
Amy Kapczysnki, Marco Simons, and Sara Aviel alighted on a wave of
international
momentum and directed it closer to home. Now, the wave is mostly past
them.
But they all realize that “on the ground” nothing yet has been
gained. And though all of this started on the ground, no one  knows
if
that’s where it will end.

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