28th November 2002

TRIPs COUNCIL: STILL NO SOLUTION ON MEDICINES IN SIGHT

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Informal discussions continued among heads of delegations on 26 November on the implementation of paragraph 6 of the Doha Declaration on the TRIPs [Trade-related Aspects of Intellectual Property Rights] Agreement and Public Health, based on a 24 November draft put forward by the TRIPs Council Chairman. Deep divisions remained over which countries should be eligible to use the system, which diseases should be covered and what the timeframe and content should be for negotiating a permanent solution once the waiver is in place.

According to paragraph 6 of the Doha Declaration on the TRIPs Agreement and Public Health, the TRIPs Council must find an expeditious solution 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 TRIPs Council is mandated to report to the WTO General Council on this by the end of 2002.

Eligibility and coverage

According to the Chair’s draft, all least-developed countries would automatically be eligible as importers, while all other Members would be eligible following a once-off notification to the WTO (see BRIDGES Weekly, 20 November 2002). The most recent draft text also includes language in the preamble noting that “developed country Members not in transition and some other Members have indicated their intention not to take advantage of the system established by this Decision as importing country Members”. The Chairman furthermore proposed the inclusion of a footnote which would specify which countries would want to use the system and which would only use it under specific circumstances, as called for in particular by the US and the EU. Members from economies in transition and high-income developing countries objected to the inclusion of any categories of countries that were not officially recognised by the WTO. Several of these countries, in particular Korea and Hungary, would not like to exclude themselves from using the system set up by the Decision.

Members also remained divided over the diseases that should be covered by the solution. The US proposed alternative text for paragraph 1b (”eligible importing Members”), which would include language on the circumstances in the eligible countries, i.e. to address HIV/AIDS, malaria, tuberculosis and similar infectious diseases. This proposal responds to concerns of the pharmaceutical industry over a broad mechanism that would include any type of diseases (i.e. also cancer or asthma). Several Members strongly opposed this amendment on the grounds that it would undermine the purpose and objectives of the TRIPs and health Declaration, which refers to “measures to protect public health” (paragraph 4).

Post-waiver negotiations

Another contentious issue relates to the permanent solution — an amendment of the TRIPs Agreement, according to the Chairman’s draft — which would substitute the interim waiver (Article 11 of the 24 November draft). In this context, the Chairman has put forward alternative language for Article 11, which clarifies that the negotiations would not be linked to the “single undertaking” launched at the Doha Ministerial Conference last year. The Chairman furthermore proposed to start negotiations on 1 January 2004 and to finalised them by 30 June 2004. These dates would be sooner than the US would prefer, but later than called for by the EU and the African countries. Regarding the amendment, some Members raised the possibility of leaving open the language on the permanent solution, thereby also allowing for a consideration of an authoritative interpretation of Article 30 as called for by Brazil and others.

Formal TRIPs Council focuses on geographical indications

Much of the discussions in the regular session of the TRIPs Council focused on extending the higher level of protection for geographical indications (GIs) to products other than wines and spirits (set out in Art. 23). Members largely reiterated their positions and made little progress on bridging the gap. In particular, countries were divided over the additional costs to consumers and producers of GI extension. Those in favour of extension, including European and some developing countries, argued that it would not significantly increase costs, while others, such as the US, Canada, Japan, Australia, New Zealand and some developing countries, believed that it would. The TRIPs Council is required to report on this issue to the Trade Negotiations Committee (TNC) by the end of the year. Members could not agree whether the report should include the proponents’ proposal to begin negotiations and/or the opponents’ demand to abandon this issue.

The TRIPs Council meeting was suspended on 27 November and will reconvene in the afternoon of 29 November to complete the negotiations on paragraph 6. The report to the TNC on TRIPs-related implementation issues also remains to be finalised. In addition to GI extension, these issues also include the review of Article 27.3(b) (patentability of life forms), postponing the deadline for developing and least-developed countries to comply with the TRIPs Agreement, and applying Articles 7 and 8 of the Agreement to ensure transfer of technology. The Chairman will circulate a draft report prior to reconvening the meeting.

On 28 November, Members continued negotiations on a multilateral system for notifying and registering GIs for wines and spirits pursuant to the Doha mandate.

ICTSD reporting.

One response to “TRIPs COUNCIL: STILL NO SOLUTION ON MEDICINES IN SIGHT”

ICTSD • TRIPS AND HEALTH STILL BLOCKED AS DEADLINE NEARS 9th February 2009 at 07:14
[...] in small groups, but did not make any major headway on narrowing the remaining gaps (see BRIDGES Weekly, 28 November 2002). Chair Peréz Motta noted that Members were “still far apart” on the [...]