TWN Info Service on Intellectual Property Issues (Mar17/01)
2 March 2017
Third World Network
Avoid patent clauses in trade treaties that can kill millions
Published in SUNS #8412 dated 1 March 2017
Penang, 27 Feb (IPS/Martin Khor*) - Recently, a very interesting article on why
there are inequalities in access to health care and how medicine prices are
beyond the reach of many people was published in The Lancet, one of the most
prestigious medical journals in the world.
The authors, who are eminent experts in development and public health,
pinpointed trade and investment agreements for being one of the greatest health
Reading their powerful commentary leads one to think: What's the point of having
wonderful medicines if most people on Earth cannot get to use them?
And isn't it immoral that medicines that can save your life can't be given to
you because the cost is so high?
The article picks on the Trans-Pacific Partnership (TPP), together with the
Transatlantic Trade and Investment Partnership (TTIP) as the worst culprits.
It says the TPP's chapter on intellectual property is "particularly
intrusive to health and restricts access to the latest advances in medicines,
diagnostic tools and other life-saving medical technologies."
This agreement, say the authors, contains many provisions that "strengthen
patent protection that provides monopolies and inevitably leads to high
They mention provisions that extend the patent terms beyond 20 years required
by the WTO; lower the criteria of what can be granted patents; and "data
exclusivity" provisions that put up barriers to generic manufacturers
entering markets after the expiry of patents.
This viewpoint article was co-authored by Prof Desmond McNeill (University of
Oslo), Dr Carolyn Deere (Oxford University); Prof Sakiko Fukuda-Parr (The New
School, New York, and formerly the main author of the UNDP's Human Development
Report for many years), Anand Grover (Lawyers Collective India and formerly the
Human Rights Council's Special Rapporteur for the Right to Health); Prof Ted
Schrecker (Durham University, UK); and Prof David Stuckler (Oxford University).
They said growing evidence suggests that the agreements "will have major
and largely negative consequences for health that go far beyond earlier trade
agreements. This situation is particularly disturbing since the agreements have
created blueprints for future trade agreements."
The Nobel Peace Prize winning medical group, Medecins Sans Frontieres (MSF), is
even more scathing in its criticism.
"The TPP represents the most far-reaching attempt to date to impose
aggressive intellectual property standards that further tip the balance towards
commercial interests and away from public health.... In developing countries,
high prices keep lifesaving medicines out of reach and are often a matter of
life and death."
This condemnation is just as relevant despite President Donald Trump
withdrawing the United States from the TPP.
There are efforts underway for the remaining 11 countries to put the TPP into
effect without the US.
Moreover, these countries have prepared changes to their laws and policies to
comply with the TPP's provisions, and may implement these even if the TPP
actually never comes into effect.
This would be an immense tragedy for public health, because most of these
countries did understand that the chapter on intellectual property would have
negative effects, but they accepted it as part of a bargain for getting better
market access, especially to the US.
Since the TPP is now in suspension, it does not make any sense for the
countries to change their patent laws when the benefit of market access is no
During the TPP negotiations, the other countries managed to dilute some of the
very extreme demands of the US, but only to a small extent.
The final intellectual property chapter still reflects the extreme proposals of
Moreover, the major developed countries can be expected to make use of the
TPP's intellectual property chapter to inject into negotiations for new trade
agreements, for example, the RCEP, the Asian regional agreement.
Negotiators, especially from developing countries, and civil society groups
should thus be vigilant that the TPP's provisions that have adverse effects on
health are not reproduced in other trade agreements.
Members of the World Trade Organisation are required to implement its
intellectual property agreement, known as TRIPS, but they are not obliged to
take on any additional obligations.
There are many provisions in TRIPS that allow a country to choose policies that
The TPP has clauses that prevent a country from making use of many of these
options because they are "TRIPS- plus", going beyond the TRIPS
First, there is a TPP provision that lowers the standards a country can adopt
to grant a patent.
Some patent applications are not for genuine inventions but are only made to
"evergreen" a patent, to enable its term to continue after it
Under TRIPS, a country can choose not to grant secondary patents for
modifications of existing medicines.
The TPP (Article 18.3) requires countries to grant patents for at least one of
the following modifications: new uses of a known product, new methods for using
a known product or new processes for using a known product.
Examples include a drug used for treating AIDS is now granted a new patent for
treating hepatitis, or a drug in injection form is given a new patent in
Second, a provision that enables extending the patent term beyond the 20 years
required by TRIPS. Most countries now count this 20 years from the date of
filing the patent application.
The TPP requires the patent term to be extended beyond that if there are
"unreasonable" delays in issuing the patents (Article 18.46) or if a
delay is caused by the marketing approval process (Article 18.48).
Extending the patent term means delaying affordable treatment for patients for
so many more years.
Third, a provision (Article 18.50) to create "data exclusivity" or
"market exclusivity", that prevents drug safety regulators from using
existing clinical trial data to give market approval to generic drugs or
biosimilar drugs and vaccines.
Under TRIPS, the clinical test data of a company can be used by a country's
drug regulatory authority as a basis to give safety or efficacy approval for
generic drugs with similar characteristics, thus facilitating the growth and
use of generic drugs.
Under the TPP, the data of the original company is "protected" and
approval of similar drugs on the basis of such data is not allowed.
The period of "exclusivity" is at least 5 years for products
containing a new chemical entity, or 3 years for modifications (a new
indication, new formulation or new method of administration) of existing
Fourth, a provision on Biologics (Article 18.51).
For the first time in a trade agreement, the TPP obliges its members to
undertake data protection obligations for "biologics", a category of
products for treating and preventing cancer, diabetes and other conditions.
They are very expensive, some priced above $100,000 for a treatment course, and
the clause will enable the prices to remain high for longer periods.
The exclusivity for biologics is for at least 8 years, or 5 years if other
measures are also taken.
These provisions on exclusivity give drug companies extra protection, even if
the product is not patented or if the patent has expired. The drugs will be out
of reach except for the very wealthy for longer periods.
Fifth, a provision (Article 18.76) that requires TRIPS-plus extra enforcement
of intellectual property.
Countries are obliged to provide that the right holder can apply to detain any
imported product that is suspected to be counterfeit or having "confusingly
This can block legitimate generic medicines from entering the country.
There have already been many cases of drugs being detained and later released
when no infringement was found, thus needlessly delaying treatment to patients.
The provision will increase the incidence.
All in all, these TRIPS-plus TPP obligations would make it more difficult for
patients to obtain cheaper generics.
If these clauses are widely adopted in other trade agreements and made into
national laws, this would shorten the lives of millions of people who would be
For example, many millions of people worldwide are afflicted with Hepatitis C,
which can lead to liver failure and death.
They need the new medicines that have nearly 100% cure rates but the prices are
over $80,000áfor a 12-week treatment course. Even with discounts, very few can
Some developing countries, making use of TRIPS flexibilities, are able to
provide treatment with generic drugs at around $500 per patient, a very small
fraction of the original drug's price. But if the TPP clauses are translated
into domestic law, this access could be blocked.
People in the developing countries are the most affected by patent
over-protection, but patients in developed countries are not spared.
The mainstream Time magazine in October 2016 listed the need to "Reform
the Patent Process" as one of the issues the US Presidential election
The Time article commented that many people believe drug companies are
"gaming" the system.
"Instead of focusing on developing new cures, they are spending millions
tweaking the way existing drugs are administered or changing their inactive
ingredients. Those moves have the effect of extending a drug's patent and
upping the amount of time it can be sold at monopoly prices, but they don't
necessarily help consumers."
It is high time for a re-think to the system of drug patents. At the least the
situation should not be allowed to worsen further, which would happen if TRIPS-plus
measures are adopted.
The lives and health of millions are at stake.
Sometimes this is forgotten or put as a low priority when pitted against the
promise of getting more exports in a free trade agreement.
But with the TPP in limbo and perhaps in perpetual suspension, there is really
no reason why the provisions that have adverse effects should be implemented in
the countries that had negotiated the TPP, when there are no benefits to be
obtained to offset them.
More generally, in all countries, policy makers and people should be on guard
not to agree to TRIPS-plus clauses in the trade agreements that they negotiate
[* Martin Khor is the Executive Director of the South Centre, a think tank for
developing countries based in Geneva.]