TWN Info Service on Intellectual Property Issues (May10/06)
21 May 2010
Third World Network

Intellectual Property Watch
18 May 2010

Developing Countries Blast WHO Report On IP, Demand ‘Credible’ Approach
By Kaitlin Mara and William New     @ 2:29 pm

A critical report on financing research and development of medicines for the world’s poorest was created without transparency, failed to live up to its mandate, and did not address the potential threat that intellectual property rights can pose to access to drugs, developing countries said today at the World Health Assembly. But a proposal by a group of Latin American countries for a new intergovernmental working group was not accepted by developed countries and others and quick informal consultations began to work out differences before the end of the assembly this week.

‘The working group failed to fulfil the mandate it had been given,’ said the Latin American countries in their draft resolution put forward today, available here [pdf].

‘We are not prepared to accept or welcome a report with so many inadequacies,’ said the delegate of Venezuela, in a view echoed by a number of delegations. ‘The [Expert Working Group on financing of neglected disease R&D] no longer has legitimacy,’ Thailand followed.

Argentina’s delegate said the working group’s process was ‘not credible’ and that it lacked in-depth analysis and did not deal with intellectual property in respect of commitments made in the global strategy on de-linking the costs of drugs from the cost of treatments, and was conducted without transparency.

Despite the criticisms, many countries, developed and developing, acknowledged the limited timeframe for the report to be completed, and the amount of work that went into it.

Unable to reach agreement on a way forward in committee, governments have moved to informal consultations to decide how to proceed on the report of the Expert Working Group (EWG) on research and development financing which was formed last year. The report was made under the auspices of the WHO Global Strategy and Plan of Action on Public Health, Innovation and Intellectual Property.

At issue now is whether to continue the work via another expert working group, an ad hoc intergovernmental process, or in the eyes of the United States and others, just to allow some experts to look further at what the Expert Working Group came up with. There is disagreement over whether a next group, if agreed, should be limited to looking deeper at existing proposals or would be allowed to examine others, such as those taken out by the Expert Working Group in question.

A Swiss delegate raised the threat that no consensus this week could mean the end of the group’s efforts. Several speakers urged that the momentum of the group be carried forward. But one country said another group like the past one would be more harmful than no further work at all.

The United States raised a question of the cost of establishing an intergovernmental process, which WHO Director General Margaret Chan estimated would cost US$3 million. The Brazilian delegation pointed out that US$49 million remained unspent from the 2008-2009 budget line on technical and medical products. Switzerland then downplayed the budget question.

Precious Matsoso of the WHO secretariat described the reports and other work it has done in support of the process, and Chan reminded member states that the next steps are up to them. She agreed with members that this was a ‘first step’ and generally defended the work of the Expert Working Group.

For Afflicted Countries, Group Did Not Fulfil Hopes

Developing countries had rested hope for solutions to the struggles they face achieving access to affordable medicines in the hands of this expert group, widely hailed as one of the key outcomes of the global strategy and plan of action on public health, innovation and intellectual property when it was approved in May 2008 (IPW, WHO, 28 May 2008).

But the work of the group ‘did not conform to expectations, particularly those of developing countries,’ said Bolivia, and it did not include consultations with the civil society organisations ‘with whom our governments usually work.’ Bolivia added it could not support another expert working group that would only replicate problems from the past.

The group did ‘not abide by the mandate’ because it does not establish or identify specific alternatives to funding to promote research and development, said Ecuador on behalf of the UNASUR countries.

Developed countries were more supportive of the group’s work, with the United States and Norway saying the mandate of the group could be interpreted in different ways, and the EWG’s interpretation of it was understandable.

India said the report should have proposed a mechanism or combination of mechanisms suitable for providing funding and to link that funding with partnerships that would deliver for health. But it ‘failed to do so.’ It does not provide ideas or analysis of how to meet developing country needs. The report ‘leaves what should have been the most important part of the work of the EWG to future work,’ the Indian delegate said.

The report ‘failed to capture the variety of problems that are linked to IP. The problems emanate from curbing’ the flexibilities under the World Trade Organization Trade-Related Aspects of Intellectual Property Rights (TRIPS) agreement, said the delegate of India. Worse, he added, ‘developed countries are not only making their IP laws TRIPS-plus but are also making developing countries accept’ the same strengthened provisions through free trade agreements or aid. And, despite the increase of patents on drugs, drugs with new therapeutic value are not emerging. India’s statement is available here [pdf, note: truncated in original].

Several states expressed disappointment that delinking the cost of research and development from the cost of treatment was not discussed in more detail. Brazil said that the EWG had instead delinked its conclusions from the indicators contained in the global strategy.

Legitimacy, Transparency at Issue

There were ‘several issues’ with the functioning of the EWG, said the delegate of Kenya, including potential conflicts of interest. Kenya called for a new expert working group to be constituted, with the selection process aided by the director general in a ‘transparent manner’ with regional representation.

Transparency issues have dogged the group’s work since the beginning, with countries and other stakeholders receiving little information about the choosing of the experts, their process or their progress while it was ongoing. In this context, when a document was leaked to a pharmaceutical lobby group in October, the conclusion of many states and civil society groups was that the expert’s work had been unduly influenced.

The expert working group that created the report ‘has no longer legitimacy’ said the delegate of Thailand, saying a new working group should be ‘free of direct or indirect industry influence.’

Cuba said they believed stakeholders had been ‘subjected to a little bit of disinformation’ and had not had ‘access to all information we might have needed and wanted.’

Even the United States generally supportive of the group’s work said it was ‘regrettable’ that information on process and manner of work was not included in the report itself when published, and that member states did not hear about it until last week’s informal meeting (IPW, WHO, 14 May 2010).

Chan did not answer transparency concerns expressed by member states during the committee meeting.

http://www.ip-watch.org/weblog/2010/05/18/developing-countries-blast-who-report-on-ip-demand-credible-approach/