E-DRUG: UNITAID NGO Delegation Expresses Strong Support for LDC Extension
Request
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10 March 2015
The NGO delegation to the Board of UNITAID offers its strong support for the
proposal of WTO least developed country Members to extend the transition period
for enforcing protections for pharmaceutical related patents and clinical data
"for as long as the WTO member remains a least developed country."
The proposal, IP/C/W/605, was offered by Bangladesh on behalf of LDCs at the
24-25 February 2015 meeting of the WTO TRIPS Council and will be taken forward
at its next 1 June 2015 meeting. In addition to seeking an unconditional
extension of the current pharmaceutical transition period set to expire on 1
January 2016, the LDCs also seek a waiver from the General Council with respect
to two additional transition measures, namely mailbox and exclusive marketing
rights provisions under Articles 70(8) and 70(9) of the TRIPS Agreement.
LDC Members are unequivocally entitled to the requested extension and waiver
under paragraph 7 of the Doha Declaration on the TRIPS Agreement and Public
Health, under the text of the original 2002-2016 pharmaceutical transition
decision, and under Article 66.1 of the TRIPS Agreement which states that LDC
Members "shall" be granted extension upon properly motivated request.
Although LDC Members already have some degree of assurance with respect to not
having to grant patent rights on pharmaceutical products or to protect
pharmaceutical data under the 2013 TRIPS Council Decision extending the general
TRIPS transition period until 1 July 2016, the proposed pharmaceutical
extension is clearer, stronger, and longer and thus will help guarantee
continuing access to affordable medicines in the poorest and most
capacity-constrained countries in the world.
The benefit of the proposed extension is that it will guarantee freedom from
pharmaceutical patents and data protections (and mailbox and exclusive
marketing rights) for as long as a country remains so technologically and
developmentally constrained that it is an LDC. There will also be no ambiguity
whatsoever in the likely text of the eventual decision - it will allow LDCs not
only to deny patents on pharmaceutical products but to not enforce any existing
pharmaceutical patents as well. This level of assurance has been used by
dozens of LDCs over the past 13 years, especially with respect to
antiretroviral medicines. LDCs' rejection of pharmaceutical patents under the
extension in turn allows donors and countries to lawfully procure generic ARVs
at the lowest possible price and gives assurance to generic producers that they
will not be sued by Big Pharma companies.
The granting of this requested extension should be non-controversial. Its
passage will further UNITAID's ability to support market entry of affordable
new medicines, diagnostics, and prevention technologies to address the
HIV/AIDS, tuberculosis, malaria, and hepatitis C pandemics in LDCs. In an era
of constrained resources but dramatically unmet need, it is crucial that LDCs
have the policy space to be free of monopoly protections on medicines so that
they can fulfill their human rights duty to ensure access to medicines for all.
Brook K. Baker, NGO Board Member
Diarmaid McDonald, NGO Alternate Board Member
Professor Brook K. Baker
Northeastern U. School of Law
Affiliate, Program on Human Rights and the Global Economy
416 Huntington Ave.
Boston, MA 02115 USA
Honorary Research Fellow, University of KwaZulu Natal, Durban, S. Africa
Senior Policy Analyst Health GAP (Global Access Project)
NGOs Board Member UNITAID
b.baker@neu.edu
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