[Catherine Saez, IP Watch, Link (CC-BY-NC-SA)] The intellectual property committee of the World Trade Organization is meeting this week with a full agenda. The highlight of the agenda is the extension of a waiver allowing least developed countries to choose not to enforce intellectual property rights on pharmaceutical products. Also high on the agenda is a decision on whether to extend a moratorium banning IP from complaints not linked to any breached WTO agreement, and the annual review of special compulsory licence for exporting pharmaceutical products.
The Council for the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights is meeting from 15-16 October.
LDC Request on Pharmaceuticals – Last Chance
This is the last council of the year, and the waiver allowing least developed countries (LDCs) to choose not to enforce intellectual property rights on pharmaceutical products, is set to expire on 1 January 2016.
The LDC group has requested that the waiver be extended indefinitely so that the WTO’s smallest economies can benefit from it as long as they have LDC status.
A number of organisations have called for the extension to be granted, as well as the European Commission (IPW, WTO/TRIPS, 10 September 2015). The decision has been confirmed by the European Council. [updated]
The Poor’s Price for TPP?
Médecins Sans Frontières (MSF – Doctors Without Borders), in a 12 October press release, pointed fingers at the United States, Australia, and Canada for “looking to weaken any exemption,” and “putting pressure on LDCs to accept a deal where they’d be worse off.”
According to the release, “US Ambassador to the World Trade Organization, Michael Punke, met with representatives of 15 LDCs last Friday in Geneva, where he noted that the US could not agree to an indefinite exemption due to pressure from some US stakeholders who are upset with the US government’s intellectual property concessions on the recently-completed Trans-Pacific Partnership trade agreement.”
Bangladesh, on behalf of the LDC group, has requested that the Council discuss the issue again at this session and accept the LDC position. Their formal request dates back to February (IPW, WTO/TRIPS, 25 February 2015).
During the recent WTO Public Forum, Michael Wamai, first secretary at the mission of Uganda, said the LDCs’ request had met resistance from some developed countries, some questioning the relevance of agreeing to a separate extension on pharmaceutical products when there is a general exemption running until 2021. He added that a number of bilateral meetings had been held and a majority of countries agree with the request, noting in particular the support of the European Commission and Norway.
Flexibilities in the TRIPS agreement have been invaluable for access to medicines in LDCs, he said, adding that in the absence of insurance that countries do not have to enforce intellectual property rights, suppliers of medicines and procurement agencies would be reluctant to export patented medicines to LDCs for fear of being sued for infringement (IPW, WTO/TRIPS, 7 October 2015).
The LDC request has been strongly supported by many civil society groups (IPW, Public Health, 29 May 2015), a supplier of essential medicines to low-and medium income countries (IPW, Public Health, 30 March 2015), and two United Nations organisations (IPW, Public Health, 22 May 2015).
Last month, several civil society organisations sent a letter to the United States Trade Representative and US Patent and Trademark Office director asking for more transparency on the US position on the LDC request (IPW, Public Health, 18 September 2015).
Non-Violation Complaints
In the WTO, there are situations were a country A can start a dispute with country B if country A feels that country B has taken an action depriving A from expected trade benefits, even without having breached any WTO rules. Those are the so-called non-violation complaints (NVCs).
According to the WTO, the moratorium has been extended from one ministerial conference to the next. The last WTO ministerial conference in December 2013 asked the TRIPS Council to make a recommendation on the moratorium, and whether it should be made permanent or not (IPW, WTO/TRIPS, 19 August 2015).
Most countries have supported a permanent moratorium but the United States and Switzerland have opposed it.
Also at the WTO Public Forum this month, Srikar Mysore, first secretary at the mission of India to the WTO, said developing countries have concerns that NVCs under TRIPS could affect the agreement’s flexibilities. It would create a lot of legal ambiguity, he said, and the mere threat of a dispute could act as a deterrent to countries using flexibilities or setting balanced policies.
In July, a group of 17 developing countries submitted a draft decision of the upcoming WTO ministerial conference in Nairobi, Kenya in December to lastingly ban IP-related NVCs. The draft decision [pdf], was put forward by Peru on behalf of Argentina, Bolivia, Brazil, China, Colombia, Cuba, Ecuador, Egypt, India, Indonesia, Kenya, Malaysia, Pakistan, Russia, Sri Lanka, and Venezuela.
On 24 September [pdf], Lesotho, on behalf of the African Group, sponsored the draft decision. This session of the TRIPS Council is the last before the December ministerial.
Review of Paragraph 6 Waiver
WTO members are expected to review the implementation of a 2003 agreement addressing Paragraph 6 of the 2001 Doha Declaration on the TRIPS and Public Health. The mechanism allows export of pharmaceutical products made under compulsory licence to benefit countries without production capability.
According to a recent analytical paper from the WTO, many exporting countries have implemented the mechanism (IPW, WTO/TRIPS, 12 October 2015). The paper offers numerous suggestions on ways to take the system forward.
The TRIPS Council is expected to adopt a draft decision that would then need to be adopted by the WTO General Council, which would once more extend the period for acceptance of the TRIPS amendment. [updated]
Report on Technology Transfer Efforts of Developed Countries
The Council is also expected to conduct the annual review of the implementation of Article 66.2, which requires developed country governments to provide incentives for their companies to transfer technology to LDCs, according to the WTO.
A number of members have submitted reports, such as New Zealand, Japan, Canada, Switzerland, Australia, the United States, and the European Union.
An additional agenda item was requested by the European Union and the United States, cosponsored by Australia, Singapore and Taiwan, according to a WTO source, on Intellectual Property and Innovation Entrepreneuralism and New Technologies. This comes as a sequel to the series of agenda items relating to innovation that have been submitted to the TRIPS Council for some time.
