A recent meeting of the Standing Committee on the Law of Patents in the World Intellectual Property Organisation (WIPO) witnessed some sparring between the developed and developing countries over the issue of pharmaceutical patents and public health. As is the case at other multilateral platforms like the World Trade Organisation, the two sides view the issue of public health differently in the context of patents.
The discussion that produced difference of opinion among members was a proposal from the Development Agenda Group (DAG) and the African Group that had been presented to the Committee in May, 2011. The DAG, which consists of around 20 developing country members including India, Brazil, Egypt and Indonesia, talks for including the development agenda in WIPO discussions.
The proposal said “the patent system should be consistent with fundamental public policy priorities and in particular the promotion and protection of public health” and advocated a three-pillar approach to bringing development and public health to the core of the discussions on patents.
The three pillars elaborated in the DAG and African Group proposal included commissioning of elaborate studies by renowned independent experts; increasing information exchange among member states and experts; and providing technical assistance especially for developing and least developed countries. The proposal also called for letting the developing and least developing countries use the flexibilities available in the international trading system in their patent regimes. The proposal even talked about the use of flexibilities in WTO’s TRIPS Agreement for public health in the regional and other free-trade agreements that are being negotiated by many developing and least developed countries.
The proposal specifically stated: “In order to protect public health, the flexibilities and safeguards contained and allowed by the TRIPS Agreement would need to be incorporated in the national legislation. There is equally the need to ensure that international commitments, including regional and bilateral arrangements, do not restrict these flexibilities and safeguards. Moreover, these safeguards and flexibilities have to be workable in practice, particularly with respect to ensuring access to medicine.”
The United States countered this proposal with its own proposal at the recent meeting in December. It states that “some of the public health issues facing developing and least developed countries include neglected diseases, the spread of TB, malaria and HIV/AIDS, and availability of medicines to treat these and other ailments.” It further says that “none of these issues can be solved by IPR flexibilities alone and in particular cannot be solved by the wholesale use of compulsory licensing. To the contrary, the lack of effective patent protection is one factor which prevents the appropriate medicines from reaching the neediest patients in DC and LDCs”. It goes on to say: “weakening the patent rights granted to pharmaceutical researchers and manufacturers in certain markets not only removes or reduces the incentive to develop new medicines, but also leads manufacturers to keep already developed medicines out of those markets. It has been shown that more goods become available in developing countries when IP rights are strengthened there. In the particular case of medicines, it has been shown that all else being equal, a new drug is more likely to be launched in a country where patent protection is strong, rather than one where such protection is lacking.” It then proceeded to propose some of its ideas for addressing the issue of public health and development in the developing and least developed nations.
As expected, the developing countries pointed out that the US proposal does not reflect the opinion of the developing countries, which are seeking to balance the issue of IPR with development and public health. The developing countries particularly pointed out that the US proposal deviates from the one tabled in May on the table and even dilutes the objective of the proposed discussions.
The issue of public health remains very crucial and delicate, and needs better handling. It is a genuine concern for the developing countries and needs to be understood by the developed countries. Confronting each other at multilateral forums may not help in bringing about the required attention that this important topic needs. The two sides would do well to sit across the table informally, to begin with, and find a solution that helps developing and least developed countries address the issue of public health while ensuring that the IPR rights of the pharmaceutical companies are not weakened.
The author is Principal Adviser with APJ-SLG Law Offices
