The current request of WTO LDC Members for an unconditional extension of the time period within which they must become compliant with the TRIPS Agreement covers all forms of intellectual property protection under TRIPS. Even though it is true that some LDCs have signed other treaties that might impose some IP obligations, e.g., the Paris Convention on Industrial Property or the Berne Convention for the Protection of Literary and Artistic Works, freeing themselves from the broader and stronger spectrum of IP mandates in TRIPS will enable their access to broad classes of essential public goods, including all medical commodities, educational and informational resources, agricultural resources, and green/climate control technologies.
Some observers have wondered whether the current LDC Extension Request would cover the previous extension granted to LDCs in 2002 pursuant to Paragraph 7 of the Doha Declaration on the TRIPS Agreement and Public Health covering “pharmaceutical products.” In technical terms, that 2002 Extension applied with respect to Section 5 and 7 of Part II of the TRIPS Agreement, namely the sections dealing with patents and data protection. The pharmaceutical product extension allowed countries not to implement, apply, or enforce patent and data rights with respect to pharmaceutical products.
The term “pharmaceutical products” is not defined in the 2002 LDC Extension (which runs until Jan. 1, 2016), but whatever its interpretation it application is not as broad as all the medical technologies and commodities that would be covered under the proposed general LDC Extension Request currently on the table at the WTO. In terms of access to affordable “non-pharmaceutical” health commodities and technologies, e.g., diagnostic machines, lab equipment, medical devices, etc., the proposed Extension Request has clear advantages. It would allow countries – in the absence of a standstill/no-rollback clause – to undue patent and data protections for a much broader array of medical technologies and commodities, not just medicines alone. In addition, the new extension would be unlimited so long as a country remains an LDC, meaning that more affordable medical commodities and technologies, including medicines, would potentially be accessible for a much longer time than the 2 1/2 years until 2016 in the 2002 pharmaceutical product extension.
Accordingly, the current LDC Extension Request could kill many birds with a single stone. It could in effect extend the current pharmaceutical product extension well beyond 2016. In addition, it would open an IP-free door to many other crucial, life-saving medical commodities and technologies. Better yet, many other essential public goods, like books and seeds and energy-saving equipment, would no longer be subject exclusively to supra-competitive pricing.
Some of the advantages of the proposed unconditional LDC Extension will be reduced if the US and EU succeed in back-room bullying tactics (described more fully elsewhere). If there are conditions or time limits put on the current proposed Extension, then LDCs should make sure that the absolute flexibilities granted with respect to pharmaceutical products in the pharmaceutical extension are not undermined. LDCs must retain the right to rollback implementation, application, and enforcement of patent and data rights with respect to pharmaceutical products and the right to seek further extensions of that 2016 transition period.
