A Canadian Billionaire’s Mysterious Death And The Effect On Access To Medicines

The mysterious death last week of Canadian billionaire Barry Sherman and his wife has raised many questions. For some, one question is what impact it will have on pharmaceutical competition in Canada, as his giant generic medicines company Apotex was seen as making a mark in access to medicines. It was also recalled that the company is the only one to have used an obscure provision of a World Trade Organization intellectual property agreement aimed at making more affordable medicines available in least developed countries.

Bernard “Barry” Sherman and his wife Honey were found dead in their Toronto mansion on 15 December, and police are investigating what may have been a homocide.

Sherman founded and, at 75, was still chairman of the largest pharmaceutical company in Canada, generics maker Apotex, which reportedly makes more than 2 billion Canadian dollars per year in sales. According to reports, he developed a reputation for creative ways of opening markets to his company’s generics, and for his generous philanthropy.

One effort his company made was to try in 2007 to use the so-called Paragraph 6 waiver in the WTO Agreement on Trade-Related Intellectual Property Rights (TRIPS) that allows more medicines produced under compulsory licence to be exported to countries lacking their own manufacturing ability (IPW, WTO/TRIPS, 15 October 2007).

This waiver was developed as a solution to a limit in TRIPS on the export of such medicines to rather be mostly for the domestic market of the producer. The solution was generated under paragraph 6 of the 2001 WTO Declaration on TRIPS and Public Health. It was later adopted as the only amendment to the TRIPS agreement to date.

In 2007, Rwanda was seen as a pioneer in the use of the waiver, when it declared it would import medicines from Canada’s Apotex under the arrangement (IPW, WTO/TRIPS, 20 July 2007). But by a year later, health advocates were declaring the waiver “unworkable” due to procedures for using it, and despite having been able to ship some medicines to Rwanda below the price of Indian generics producers, Apotex found the experience discouraging and did not repeat it (IPW, WTO/TRIPS, 1 October 2008). The last shipment was delivered in September 2009 (IPW, WTO/TRIPS, 17 September 2009), and since then, efforts have been made to encourage use of the waiver and to make some modifications to it, but it remains little used, with Apotex being remembered for having been the lone trailblazer willing to try.

Separately, among many lawsuits the company was reported to be involved in over the years, Apotex also was on the losing end earlier this year of a Canadian Supreme Court decision in AstraZeneca Canada Inc. v. Apotex Inc. involving the “Promise Doctrine” that allowed patents to be overturned (IPW, IP & Health, 1 July 2017).

Beyond the bigger questions of how the Shermans died, some questions might arise over what this means for Apotex and the culture of IP competition in Canada and beyond.

“We need generics firms to be bold,” said Peter Maybarduk of Public Citizen. “There’s been too little of that in recent years, as consolidation and deals with the patent-based firms have generics companies avoiding the sort of pro- competitive action we need to expand global access to medicines.”

“I hope others will take up the charge,” he said.

 

Image Credits: Apotex