WTO TRIPS møde marts 2002

Brief report on TRIPS Council Meeting on Public Health on 5th March

posted on March 7, 2002 by Ruth Mayne of Oxfam GB to Ip-health listserv (http://lists.essential.org/pipermail/ip-health)

[Note: More detailed background on this meeting can be found in other postings on the same listserv. See particularly the Africa Group and developing countries statement on March 5
(http://lists.essential.org/pipermail/ip-health/2002-March/002762.html - type long URL on one line)
and the statement by HealthGap on March 8 with a critique of the position taken by the U.S.:
http://lists.essential.org/pipermail/ip-health/2002-March/002758.html - type long URL on one line]

The TRIPS Council has to find a solution to the problem recognised
at Doha that 'WTO members with insufficient or no manufacturing
capacity in the pharmaceutical sector could face difficulties in making effective use of compulsory licence provisions' and instructed WTO members 'to find an expeditious solution to this problem and report to the General Council before the end of 2002'.

On the plus side, developing countries were very much united. The African Group (41 members) made a statement supported by many developing countries including Brazil, India, Peru, Ecuador,
Malaysia and Indonesia (some are still missing). There was agreement on the part of developing countries to oppose any narrow interpretation of paragraph 6 of the Doha Declaration, or to divide
developing countries into separate categories. A lot of emphasis was put on the issue of technology transfer, including by China which supported the developing countries.

Both developing countries and the EC agreed that the two options were interpretation of art 30 or amendment or deletion of 31F.

In relation to an amendment of 31 the EU said that any solution must be subject to conditions including: the need to provide safeguards against exports to countries which do not face serious public health problems the need to provide safeguards against
re-exportation from the country of destination, especially to rich
countries, to avoid creating 'black-markets' for the productins
concerned; and the need to make the system transparent, in order to
allow other Member to be informed if a Member makes use of this
mechanism.

In relation to a possible interpretation of Article 30 the EU said
that minimum conditions would include:

* The entirety of the production must be imported by the Member having granted the license

* the product must be commercialised or distributed solely in the Member having granted the license and for the sole purpose for which the licence was issued, and must not be re-exported

* both Members would need to take all necessary measures to avoid trade measures

The US position was different. Taking a very narrow approach of the Doha declaration, the US said that they opposed a reinterpretation of Article 30. Doing so would contradict the meaning of this article which deals only with pre-expiration testing, research exemptions and prior user right. Article 30 also contains no
requirements for notifying a patent owner of use, for establising particular terms and conditions, for expiration if circumstances change, or for remuneration to the patent holder.

The US favours consideration of solutions under Article 31, but does not like the idea of amending TRIPS. It therefore proposed a moratorium on dispute settlement instances for compulsory licensing related to exports to a poor country that lacks or has insufficient manufacturing capacities in the pharmaceutical sector.They described this as a solution under Article 31.

The US also argued that solutions must be focused on improving access to pharmaceuticals to treat disease refered to in the Declaration, such as HIV/AIDS, malaria, tuberculosis and other epidemics. That the phrase 'insufficient or no manufacturing
capacities in the pharmaceutical sector' should not be extended to
developed countries or to countries that choose not to manufacture certain drugs based on policy, economic or other reasons. It also seriously questioned whether there are any circumstances under which this solution should be employed by commercial entities on a for-profit basis.

Oxfam GB, 274 Banbury Road, Oxford OX2 7DZ. http://www.oxfam.org.uk