6th February 2003

LAST-MINUTE ATTEMPT TO SAVE TRIPS & HEALTH DISCUSSIONS

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A General Council meeting on 11 February was suspended following a request by the Chair of the Council for Trade-related Aspects of Intellectual Property Rights (TRIPs), Ambassador Eduardo Perez Motta (Mexico), for more time. Chair Perez Motta said he wished to continue his consultations to take advantage of “a certain momentum towards finding a solution” generated in recent days. Members are discussing Perez Motta’s latest suggestion of adopting his 16 December draft on a solution to paragraph 6 of the Doha TRIPs and Health Declaration in conjunction with a Chair’s statement outlining a number of “understandings” that have emerged in the discussions. Civil society group Medecins sans Frontieres (MSF) strongly rejected the Chair’s proposed statement, warning that “adopting the Chair’s note would result in the progress that was made at Doha being utterly reversed”.

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. the practice by a government to authorise itself or third parties to use the subject matter of a patent without the authorisation of the right holder for reasons of public policy) 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.

In his statement to the General Council, Perez Motta noted a general willingness on the part of Members to find a solution “as soon as possible” and to “look positively at proposals aimed at providing the level of comfort” necessary for the 16 December text to be acceptable to all. His proposed statement, which he would make prior to proposing the adoption of the 16 December draft, stresses that delegations have made it clear that they see the system established by the paragraph 6 solution “as being essentially designed to address national emergencies or other circumstances of extreme urgency”. The note further states that “countries have recognised the need to avoid undermining the importance of intellectual property protection for the development of new medicines”.

Motta noted that his proposal had received a “generally positive response” from many delegations and that they were now waiting for more concrete reactions from some Members, including the US. While acknowledging that the US had rejected a similar suggestion on 20 December on the basis that the statement would not be considered legally binding under WTO rules, Perez Motta expressed optimism that the statement might be accepted this time. He argued that perspectives had changed since then following recent talks between industry representatives and developing countries.

Sources indicated that the Latin American countries had expressed their willingness to accept the Chair’s proposed statement, but that their position would also depend on the reaction of the African Group. The position of African countries has still not been finalised. While Perez Motta said that the African group was “on board”, a Kenyan trade official noted that the Group was looking for changes in the statement. In particular, the Group would like to see reference to “national emergencies” to be substituted with “public health problems” which they said was in line with the Doha Declaration. Perez Motta, however, stressed that his statement would not be changed. “It’s take it or leave it,” he said.

MSF strongly criticised the proposed statement, “urgently” calling on countries to reject the text. In an open letter to WTO Members, MSF argued that paragraph 6 had never been intended to address only national emergencies and that the 16 December draft did not include any limitations to emergency situations. “Anyone who claims otherwise is re- writing the history of the Doha negotiations.” They also noted that the adoption of the text would create two classes of Members in the WTO, where one class with sufficient manufacturing capacity would be able to use compulsory licences to address public health problems, while “second class” Members with insufficient capacity would be restricted to addressing emergencies. They further warned delegations to “be under no illusion” that the Chair’s note would have no legal consequences. “The Chair would not be making the note if it had no legal effect,” they stressed.

Consultations are set to continue on TRIPs & health, including at the upcoming ‘mini-ministerial’ in Japan on 15-16 February. Perez Motta is hoping to have something concrete to report by the end of the next TRIPs Council meeting, scheduled for 18-20 February. He is likely to want to finalise a deal before he hands over his post as the Chair of the TRIPs Council to Singapore’s Ambassador Vanu Gopala Menon at the next TRIPs Council meeting. No new date has been set for reconvening the General Council session.

The MSF letter is available at http://www.msf.org/content/page.cfm?articleid=2EA7AA16-950B-4E3A-9CB09172563 0F8E6.

The Chair’s 16 December draft can be found at http://www.ictsd.org/ministerial/cancun/docs/TRIPs_para6_16-12-02.pdf.

ICTSD reporting; “WTO members delay move on compromise on TRIPs/Medicines, await word from US,” WTO REPORTER, 11 February 2003.