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[e-drug] EU Urged To Back Poor Countries

E-DRUG: EU Urged To Back Poor Countries


6 June 2007
EU Urged To Back Poor Countries' Use Of TRIPS Flexibilities
By David Cronin for Intellectual Property Watch

BRUSSELS - The European Union should stop demanding that poor countries 
apply its intellectual property rules to medicines through trade 
negotiations with the African, Caribbean and Pacific (ACP) bloc, legal 
experts argued at an 4 June event here. 

The EU's executive arm, the European Commission, is hoping to conclude 
free trade deals known as Economic Partnership Agreements with 76 ACP 
countries by the end of this year. Under proposals put forward by the 
Commission, these would require ACP countries to place EU intellectual 
property rules on their national statute books.

Frederick Abbott, a professor of international law at Florida State 
University (US), said that if the Commission is successful, it would 
impose a 'substantial burden' on the countries concerned and that there 
could be adverse consequences for public health. Instead, he recommended 
that the EU encourage poor countries to make use of flexibilities in rules 
on intellectual property rights at the World Trade Organization (WTO). 
Doing so could drive down the cost of drugs that would prove prohibitive 
should the patents on them be enforced. 

Abbott has been hired by the European Parliament's committee on 
international trade to prepare an analysis of what policy options the EU 
has to boost the supply of medicines in poor countries. 
Presenting his initial findings on 4 June, Abbott considered whether the 
Parliament should endorse a December 2005 protocol amending the WTO's 
Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) 
(IPW, WTO/TRIPS, 6 December 2005). 

The protocol is designed to give permanent effect to a 2003 waiver from 
TRIPS agreed by to by WTO members. The waiver allows countries lacking 
drug manufacturing capacity the increased possibility to import generic 
versions of patented medicines produced under compulsory license. It 
followed the declaration of the 2001 WTO ministerial conference in Doha, 
Qatar, that intellectual property rights should be interpreted in a way 
that protects public health and promotes 'access to medicines for all.' 
Abbott said that if members of Parliament decide to push for a 
renegotiation of the amendment, there is a risk that the pharmaceutical 
industry will succeed in restricting the protocol's scope so that it could 
only be used to cover certain diseases. 

Yet while the WTO has asked its 150 member governments to ratify the 
protocol by the end of 2007, Abbott argued that the Parliament may be 
right to stall on approving it. Delay could be used as a tactic to 
pressure the Commission and the 27 EU governments to refrain from 
insisting that ACP countries agree to apply EU standards on intellectual 
Jerome Reichman, professor of law at Duke University (US), said that poor 
countries in general have seen 'an enormous flood of patent applications” 
in recent years. Colombia's patent office, for example, has some 3,500 
applications pending. Reichman, who is co-author of the report with Abbott, 
said that the European Commission's proposals to the ACP countries would 
require them to enforce intellectual property in a way that presumed in favour 
of patent holders and compensate them for losses incurred when patents are 
infringed upon. 

European Union Silence
A Commission official said, however, that the ACP should use European 
rules on intellectual property as a 'source of inspiration,' in particular 
to prevent fraud. 'We have to face the reality that poor people are often 
confronted with fake medicines,' the official added. 'This is certainly 
the case in Africa.' 
The humanitarian organisation Medecins Sans Frontieres (MSF) has called on 
the EU to support countries that have decided to issue compulsory licenses 
to overrule drug patents. 
Paul Cawthorne, MSF's head of mission in Thailand, said 'it is of 
considerable concern that the European Union has been silent' in the 
international dispute that followed the Thai government's decision to 
issue a compulsory license for the AIDS treatment efavirenz in November 
2006. At $468 per patient per year, the price charged by Merck, the drug's 
patent-holder, was more than twice that of a generic version of the same 
medicine, made in India. Yet while the Thai decision was taken on public 
health grounds, it was opposed by drug firms and by the US government. 
'In Thailand, I saw men, women and children dying because they could not 
have access to medicines at prices MSF or the Thai government could 
afford,' said Cawthorne, adding that the issuing of compulsory licenses 
had led to an 'impressive scaling up of treatment'.
But Jon Pender, director of government affairs with GlaxoSmithKline, 
claimed it is 'misleading and counter-productive to focus on intellectual 
property protection as a significant barrier to access to medicines in 
developing countries,' arguing that rampant poverty and inadequate 
healthcare systems are bigger problems. More than 95 percent of all drugs 
on the 'essential medicines list' compiled by the World Health 
Organization (WHO) are not covered by patents, he noted. 'And yet the WHO 
says that one-third of the world's population do not have regular access 
to these drugs ,in parts of Africa and Asia, this rises to two-thirds.' 
Italian Liberal MEP Gianluca Susta complained that 'not a single member of 
the WTO has yet decided to use the system agreed in 2003 to import cheap 
life-saving medicines.' This, he said, 'could mean that the decision does 
not address in a satisfactory way the problems faced by developing 
countries in accessing medicines at affordable prices.'
Greg Perry, director-general of the European Generic Medicines 
Association, complained that the 2003 decision is 'only likely to have a 
marginal impact.' Companies making generic versions of drugs would not 
find it financially rewarding to supply drugs to small countries, even if 
they issue compulsory licenses, he said, while recognising that it may be 
possible to overcome that difficulty if several governments could issues 
licenses jointly.

David Cronin may be reached at info@ip-watch.ch.

Alexandra Heumber
EU Advocacy Liaison Officer
Access to Essential Medicines Campaign
Rue Dupre, 94. 1090 Brussels
++32 (0) 2 474 75 09 (Dir off)
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