2nd January 2003

WTO MEMBERS STILL BATTLING OVER TRIPS AND HEALTH

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As BRIDGES Weekly went to press, negotiations were still going on in the WTO Council for Trade-related Aspects of Intellectual Property Rights (TRIPs) over paragraph 6 of the Doha Declaration on the TRIPs Agreement and Public Health. While most WTO Members had expressed their willingness to approve the Chair’s most recent draft Decision, released on 16 December, on the condition that it was not re-opened, the US rejected the draft, disagreeing in particular with the disease coverage.

According to paragraph 6 of the Doha Declaration on the TRIPs Agreement and Public Health, the TRIPs Council must find an expeditious solution by the end of 2002 to the problems countries may face in making use of compulsory licensing (i.e. allowing the use of a patent without the consent of the patent-holder under certain conditions) if they have insufficient or no pharmaceutical manufacturing capacity. The perceived need to address this issue arose from concerns related to Art. 31(f) of the TRIPs Agreement, which requires that production under compulsory licensing must be primarily for the supply of the domestic market.

US pushing for restricted disease coverage

The 16 December draft Decision retains the disease coverage of previous drafts, referring to paragraph 1 of the TRIPs and Health Declaration, i.e. “public health problems afflicting many developing and least- developed countries, especially those resulting from HIV/AIDS, tuberculosis, malaria and other epidemics”. The draft also covers active ingredients used in the manufacture of medicines as well as diagnostic kits needed for their use, as proposed in particular by the Africa Group. The US, however, is fighting hard to restrict disease coverage to HIV/AIDS, malaria, tuberculosis and similar infectious diseases, arguing that the current scope of the decision could fundamentally undermine patent rights for a broad array of pharmaceutical products. While Switzerland, traditionally a supporter of the US position on this issue, described the text as an “improvement”, they believe that Members can still find a solution on disease coverage that would suit everyone.

Other outstanding issues

Most countries, including the US, appear willing to accept the Chair’s proposal regarding the other five outstanding issues that the Chair had previously identified (see