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
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
David Cronin may be reached at email@example.com.
EU Advocacy Liaison Officer
Access to Essential Medicines Campaign
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