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Higher prices, monopolies, and delays in incorporating key medications into the healthcare system are some of the consequences of patents on access to healthcare. For this reason, people living with HIV have been demanding an end to the patenting of essential medicines for decades. Some public policies, such as patentability guidelines in Argentina, have managed to curb abuses of this system, but today they are in danger, not only for Argentina but for all of Latin America.

The recent agreement between Argentina and the United States —which still needs to be debated in the Argentine Congress— seeks to eliminate the policy that granted the country greater health sovereignty . This paints a bleak picture for the region, exacerbated by Latin America's exclusion from agreements that make HIV medications more accessible, and in a context of global health funding cuts.

What are patents?

What are patents? Why do they affect the right to health? Presentes spoke with two specialists and activists on the subject to learn about their impact in the region.

Patents are property titles granted by the State to an inventor in all areas of technology, such as pharmaceuticals. “They generate a 20-year exclusivity period during which only the patent holder can market, manufacture, or import what is patented. In other words, they create a monopoly ,” explains Lorena Di Giano, a lawyer specializing in access to medicines and intellectual property, an advocate for the right to health, and executive director of Fundación GEP (Grupo Efecto Positivo) in Argentina.

“In the area of ​​medical technology, it is truly detrimental to health,” he adds, “because there are no competitors, and the monopoly allows them to exploit their exclusivity and raise prices. That is why medicines and other health technologies are so expensive.”.

Why is health sovereignty important?

According to Francisco Rubio, Advocacy Director for Latin America and the Caribbean at AIDS Healthcare Foundation (AHF), “this not only directly impacts the price, but also competition and the time it takes for the drug to be incorporated into public health systems.”

In 1994, more than 100 countries signed the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), as part of the founding agreement of the World Trade Organization (WTO). It is the most comprehensive multilateral agreement on intellectual property. It establishes binding international minimum standards, including a patent term of at least 20 years.

“Before the adoption of this agreement, Latin America did not have monopolies on medicines or medical technology. Now it does. Its unique feature is that it allows countries to adapt to these new standards in harmony with the rest of their legal systems. Therefore, we have different patent systems within the Latin American region,” Di Giano explained.

The situation in the region

“In Latin America, the issue of patents is a persistent and quite complex problem. Many countries are left in limbo. On the one hand, they are not usually included in the preferential access mechanisms designed for low-income countries. But they also lack the economic capacity to absorb the initial prices generated by this sort of monopoly created by patents,” Rubio shared.

In this regard, the US pharmaceutical company Gilead Sciences has once again excluded most Latin American and Caribbean countries from a pricing agreement with the Global Fund to Fight AIDS, Tuberculosis and Malaria . The goal of this agreement, signed in July 2025, is to make Lenacapavir, the most innovative HIV prevention drug to date, more accessible. This drug offers injectable preventive treatment and requires only two doses per year. The countries excluded from the agreement must negotiate individually and confidentially with the company.

“Latin America often finds itself in an intermediate position within global access mechanisms. Countries like Chile, due to their current economic situation, can temporarily address the stockpile of treatments or medications. But in the case of Central America, it's more complex. Because they don't qualify as what the laboratory considers a low-income country, they remain in this space where they can't get either A or B,” Rubio explained.

For the guarantee of access

In this context, the Joint United Nations Programme on HIV/AIDS (UNAIDS) urged Gilead to make Lenacapavir available off-patent to reduce its cost.

In various countries, such as Mexico, there is a high concentration of contracts among a few suppliers, along with a lack of transparency and even shortages . Eighty-two percent of antiretroviral purchases in Mexico ended up in the hands of three companies: Farmacéuticos Maypo, Gilead Sciences, and Janssen-Cilag. This data corresponds to 2020, the last year in which Mexico publicly reported its antiretroviral treatment purchases.

On the other hand, some states are using flexibilities in intellectual property law to protect access to medicines in their countries. This is the case in Colombia, which recently issued a compulsory license for dolutegravir, an HIV treatment. This means that the government authorizes the manufacture, import, or sale of the patented drug without the patent holder's consent. 

“This demonstrates that the international legal framework allows prioritizing public health when there is a state decision,” Rubio analyzed.

Setbacks

The global situation was aggravated by the funding crisis for the AIDS response, caused by reductions in international HIV assistance in 2025. According to the Organization for Economic Cooperation and Development , the projected drop during 2025 is between 30 and 40% compared to 2023.

In addition, the rise of right-wing and far-right governments in the region has brought changes to patent policies . “In Brazil, until the (Jair) Bolsonaro administration, the National Health Surveillance Agency had the authority to review patent applications submitted for review. This power was later eliminated. The only current health and patent protection policy in the region is that of Argentina,” Di Giano explained.

In 2012, Argentina adopted the Patentability Guidelines . This policy has become a benchmark for access to healthcare, as it establishes a set of rigorous criteria defining what is patentable and what is not, thus preventing the granting of unjustified patents. This has enabled the production of domestic generic drugs, improved price competition, and savings for the public healthcare system.

A favor to monopolies

However, the recent Reciprocal Trade and Investment Agreement between Argentina and the United States stipulates that Argentina must repeal these Patentability Guidelines and respect foreign patents . This is a demand that foreign laboratories, especially those from the United States, Germany, Switzerland, and the United Kingdom, have been making since 2012, represented by the Argentine Chamber of Medicinal Specialties. While the measure is not retroactive, it means that domestic laboratories cannot copy formulas to produce essential generic medications.

“Patentability guidelines aim to curb abuse of the patent system. There are records dating back many years indicating that the United States sought to overturn them. It is truly detrimental for Argentina to ratify this agreement in Congress,” Di Giano stated. “If Argentina were to modify these standards, the impact would not be limited to its domestic market,” Rubio added. “In Latin America, the regulatory frameworks of countries with significant technical expertise often influence similar debates in other states. A relaxation of these standards could weaken a regional benchmark for rigorous patent examination.”

This project is supported by the IAS ( International AIDS Society ) through Community Project Grants , as part of the preparations for the AIDS Conference 2026.