[e-drug] Notes from Tuesday discussions on paragraph 6

[James Love <james.love@cptech.org>]

E-drug: Notes from Tuesday discussions on paragraph 6
---------------------------------------------

How Low Can You Go?

Notes from Tuesday  (26 Nov 2002) WTO negotiations on paragraph 6 of 
the Doha Declaration on TRIPS and Public Health (concerning export 
rules for non-voluntary use of patents on health care inventions).

Geneva
There appeared to be little progress on a "solution" to paragraph 6 
on Tuesday, but still new text.   The two new things circulated were 
a proposal the United States is pushing very hard now to exclude OECD 
countries as beneficiaries on the import side.  It is a footnote to
paragraph 1(b) of the November 24 text, that says:

"It is noted that developed country members not in transition have 
stated their intention not to use the system established under this 
Decision as importing country members and that some other Members 
have stated their intention to use the system only in circumstances 
of extreme national emergency (WT/GC/m...)."

NO EXCEPTIONS, EVEN FOR BIOTERRORISM OR ABUSES OF
PATENT RIGHTS

The US proposal would made it impossible for the United States, 
Europe, Japan, Australia, Canada, New Zealand, Korea and other OECD 
member to import products.  This is quite extraordinary when one 
considers that the Doha Declaration itself was influenced heavily by 
the US and Canadian decisions on Ciprofloxcin, during the Anthrax 
scare, which *could* have been more serious, in a situation where the 
US was about to import from India, and the lack of stockpiles in the 
United States led to unequal access to Cipro, and Capitol hill mail 
room workers died while high government officials were given the 
drug.  The US proposal would override the effectiveness too of HR 
3235 from the last Congress, The Public Health Emergency Medicines 
Act.

A few other cases that deserve mention are the Korean proceedings on 
Glivec, where the threat of a compulsory license is based upon an 
imports from India, and the case in New Zealand where BMS allowed the 
entire national supply of ddI to run out in a dispute over the price 
the government would reimburse, to mention only a few relevant cases.

ONLY DISEASES THAT TRAVEL

We also heard that the US tried to limit the scope of disease to only 
infectious diseases, meaning I suppose that only diseases that might 
travel and infect US citizens would be covered, a particularly 
offensive formulation of the "wrong disease" strategy to limit the 
scope of compulsory licensing.

PROTECTIONIST APPROACH

To all of this, one needs to be clear how explicitly protectionist 
this is.  If the US, Japan or Europe issues a compulsory license, 
under this system they are forced to grant the license to a domestic 
firm, and they cannot allow an Indian, Chinese, South African, 
Malaysian, Thai or
Mexican supplier to provide the drug.  It is hard to see how this 
promotes technology transfer or economic development in the 
developing world.  At what point do trade officials put to rest "free 
trade" rhetoric.

TEMPORARY SOLUTION

Then there was the discussion over an amendment to paragraph 11, 
which concerns the legal mechanism, and quite a bit of work on US 
proposal to make the "solution" as temporary and subject to review or 
termination as possible.  So basically, the negotiations are moving 
in the wrong direction, reflecting it seems that the US, EU, Japan, 
Swiss, Australia and Canada are sensing that some delegates want a 
symbolic
achievement so bad, they will settle for almost nothing of substance, 
or even something that represents a big setback from where things 
were last year in Doha, and which prejudices the existing text.

One Latin American delegate predicted flatly that no one would ever 
use the "system" being created.   There was a discussion with an 
African delegate over the lack of information to most delegates over 
Article 30 approaches, including a lack of information on the recent 
European
Parliament adoption of Amendment 196, and the nature of the Canadian 
"bolar" decision that authorized exports for pre- expiration of 
patent generic drug registration purposes, without safeguards, 
without limitations on diseases, without notice to patent owners, and 
without compensation to patent owners (also the EU Amendment 196 
approach).  The African delegate was asked if it would be possible to 
ask the WHO or the WTO secretariat to provide the delegates with 
information on both approaches.  The response was, "I can't, the US 
would kill me."   Apparently the WTO secretariat feels the same way.

But apparently some delegates don't take their cues from the US 
delegation, and there was some new discussion about an Article 30 
approach, which was encouraging.

Jamie  +41 79 579 6022

------
James Love, Consumer Project on Technology
http://www.cptech.org, mailto:love@cptech.org
voice: 1.202.387.8030; mobile 1.202.361.3040
James Love <james.love@cptech.org>
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