Sean Flynn, a lecturer at American University Washington College of Law and Associate Director of its Program on Information Justice and Intellectual Property, testified to negotiators of the Trans Pacific Partnership Agreement in Peru this week that they should reject the leaked US proposals on intellectual property and pharmaceutical pricing.

According to Professor Flynn,

“These are extreme proposals that have no place in a trade negotiation, particularly one with some of the poorest countries in the world.”

Flynn is a coordinator of a network of over 400 international intellectual property experts from 35 countries and 45 universities. That network convened the Global Congress on Intellectual Property and the Public Interest, August 25-27, 2011, at American University, resulting in the Washington Declaration on Intellectual Property and the Public Interest. According to Flynn, the US TPP proposal violates numerous principles of the Washington Declaration – now endorsed by nearly 1,000 experts from around the world.

According to Flynn:

The conflict between the TPP and the Washington Declaration begins at the process. This negotiation is being held in secret, with no official releases of text for public view. The Washington Declaration is highly critical of this approach. It explained: ‘International intellectual property policy affects a broad range of interests within society, not just those of rights holders. Thus, intellectual property policy making should be conducted through mechanisms of transparency and openness that encourage broad public participation.’

One of the core calls of the Washington Declaration is to ‘fully integrate the development dimension into intellectual property policy and norm-setting.’ The US TPP proposal fails woefully in this regard. The proposal is an outgrowth of the US post-TRIPS agenda to use trade agreements to escalate intellectual monopoly rights to a one-size-fits-all US standard everywhere. This agenda is direct opposition to the agenda being led by developing countries in open and transparent processes at the World Intellectual Property Organization. That ‘development agenda’ is focused on promoting the expansion and use of limitations and exceptions to intellectual monopoly rights and maximizing the policy space necessary to adopt different local standards tailored to counties’ development contexts.

Flynn also called on countries to reject the US proposal to include restrictions on pharmaceutical pricing programs in TPP:

The proposed pharmaceutical chapter regulates public health policy, not trade. The heart of the proposal would require that countries establish new administrative and judicial appeal systems to contest whether public drug reimbursement rates “appropriately recognize the value” of pharmaceutical patents. Using secretive trade negotiation processes to set minimum requirements for domestic health policy is democratically illegitimate.

Pharmaceutical pricing is an inappropriate subject for agreements with developing countries. This would be the first-ever international agreement regulating the efficacy of pharmaceutical reimbursement programs in developing countries. All of the developing countries negotiating the TPP (Peru, Malaysia, Vietnam, and Chile) have been identified as having high medicine prices compared to international references.

The U.S. proposal would require bad public policy that is not followed in the US itself. In particular, the operation of preferred drug lists by the Federal Medicaid program would violate the terms of the agreement, including because they do not provide appeals for pharmaceutical companies on whether the prices achieved adequately value patents.

For more information, including written statements and textual analysis, see www.infojustice.org/trans-pacific-partnership