TRIPS talks on implementing Doha run into more problems

Geneva, 21 Nov (Chakravarthi Raghavan) - The chairman of the TRIPS Council, Amb.  Eduardo Perez Motta of Mexico, has put off a plenary session of the informal TRIPS Council meeting to receive and consider a draft legal text to implement para six of the Doha Declaration on TRIPS and Public Health, pending further consultations and talks among a small group of about 25 countries.

On 19 November, he had put forward to this group a draft legal language for various points to be covered in any decision. According to the original plans, such a legal text was to have been completed and approved by the TRIPS Council at a formal meeting next week, and then by the General Council at its meeting in December.

However, the United States has apparently come out strongly objecting to some of the language - and insisting on its own narrower interpretation of the pharmaceutical products, eschewing any processes and diagnostic kits, and also the scope by having a legal text that will covers only HIV/AIDS, TB, Malaria and other epidemics.

Paragraph one of the Doha declaration, while mentioning these, has a wider ambit:

“We recognize the gravity of the public health problems afflicting many developing countries and the least developed countries, especially those resulting from HIV/AIDS, tuberculosis, malaria and other epidemics.”

Under any interpretations of this para and ordinary dictionary meanings, the use of ‘especially’ means that the declaration applies to the three diseases mentioned, and ‘other epidemics’, but is not restricted to them.

However, in an effort to take back what the US and pharmaceutical industry had to yield at Doha, the US is trying to rewrite, under the guise of making things operational, the Doha declaration.

There are some legal experts who believe that even the issue of need for an agreed interpretation for countries to use Article 30 limited exception arises only because the original intent was misinterpreted in favour of patent holders by the WTO panel (headed by Robert Hudoc) in the Canada-EC dispute on patents, and insisting on an unwarranted restricted meaning for the ‘exception’ which even runs counter to the Appellate body’s views on ‘exceptions’ as a defence.

The talks on the chairman’s initial draft (of 19 November) was continuing within a small group of the countries in some ‘very tense’ negotiations as one participant described it mid-day.

Meanwhile, the chairman of the UK Independent Commission on Intellectual Property Rights, Prof. John Barton (Prof of Law at the Stanford University), in a letter in the Financial Times, has said the arguments and the talks about the Doha declaration and implementing, and the letters and comments in the FT involving Amartya Sen and the pharmaceutical lobby (Harvey Bale) that patents are not the real issue in non-availability of medicines and drugs is a “continuing rhetoric on drug patents obscuring the real world issues.”

Barton notes that his Commission studied this issue in great detail and concluded that patent rules did affect access to medicines required by poor people, as also did government health policies. But the Commission saw no “real trade off between improving IP arrangements to pursue the objective of public health and addressing issues of policy, infrastructure and resources for the same objectives.” Responsible people, Barton says, would agree that it is not an either or situation. The danger is that the continuing exchange of rhetoric obscures the real world issues.

“A legal solution of the kind now being negotiated at the WTO on compulsory licensing,” Barton says, “is unlikely to resolve the economic problems that the world will face after 2005. At that point India, in particular, is required to apply patent protection to new medicines and its new laws will inevitably reduce the ability of its generic suppliers to provide products in competition with those on patent. Even with ‘liberalised’ compulsory licensing rules, potential generic suppliers will then find it much more difficult to offer to produce medicines at low cost. This will reduce the value of compulsory licensing as a bargaining tool for governments negotiating with suppliers of medicines and will leave prices higher than they otherwise would be. Dealing with this coming situation may require alternate production arrangements; it will certainly require much more than a change in compulsory licensing rules.

“The current legal negotiations are important - but solve only part of the problem. The task of meeting the critical need of poor people for medicines at the lowest possible cost in the face of the global extension of patent protection is constantly evolving and policy makers need to focus on the needs of the future, not just those of today.”

Independently, a recently published study, by the Washington-based independent think tank, the Centre for Economic and Policy Research, after a detailed study came to the conclusion that with research and development and bringing the drugs on to the market now estimated to cost about $800 million for every drug, rewarding innovation through limited duration monopoly rights has now become “economically wasteful, encouraging rent-seeking behaviour and works against public interest by increasing the costs of medical care.” (SUNS #5219 for a fuller report).

These studies and views have generated a wider movement in civil society and health activists against the WTO TRIPS and WIPO Intellectual Property Agreements, and efforts to set universal global norms. Unless these are resolved quickly, it will strengthen the movements in civil society in major countries, both industrialized and the developing world, against the WTO itself. – SUNS5240

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