‘…Least Developed Countries will not be obliged, with respect to pharmaceutical products, to implement or apply sections 5 and 7 of part II of the TRIPS Agreement or to enforce rights provided for under these sections until 1 January 2016, without prejudice to the right of least developed countries to seek other extensions of the transition periods….’- Paragraph 7, Doha Declaration on the TRIPS agreement and public health (2001).
The Agreement on Trade Related Aspects of Intellectual Property came into force on 1st January 1995 after the Uruguay round of negotiations and the coming to birth of the World Trade Organization. The agreement has been credited with establishing global standards of intellectual property protection. It has also been criticized for failing to balance its competing goals of protecting and promoting innovation and catering for the public health needs of developing and least developed countries.
This year, TRIPS commemorates its 20th year in influencing aspects of intellectual property and trade in the world. The past years have seen heavy debate on pharmaceutical product patents and access to medicines for developing and least developed countries. This heavy debate led to a waiver of implementation of drug patent provisions of TRIPS to 1st January 2005 for developing countries and 1st January 2016 for least developed countries.
With the fast approaching date of 1st January 2016, the debate has yet again set foot in the prisms of intellectual property law- theme- whether a request for extension of the waiver period for LDCs should be granted. LDCs sought an indefinite extension of the period grounding their request on Paragraph 7 of the Doha Declaration on TRIPS and Public Health and Article 66 (1) of TRIPS that obliges signatories of TRIPS to approve such requests for extension without conditions.
Below is an excerpt of the statement from the Bangladesh representative presented on 24th February 2015, at the WTO TRIPS Council on behalf of the Least Developed Countries (LDCs) Group.
“Access to affordable pharmaceutical products (e.g. medicines, vaccines, diagnostic kits) is a prerequisite, to deal with the numerous public health challenges facing LDCs. LDCs are home to some of the world’s most vulnerable people and they bear considerable health burdens. In 2011, some 9.7 million of the 34 million people living with HIV worldwide lived in LDCs. Of the people living with HIV in LDCs, 4.6 million were eligible for anti-retroviral (ARV) treatment in accordance with the 2010 World Health Organization HIV treatment guidelines, however only 2.5 million were receiving it. LDCs also bear increasing health burdens from non-communicable disease. For example, cancer incidence is expected to rise to 82% in 2030 in low-income countries compared to 58% in upper-middle and 40% in high- income counties. You may recognize that not only do we lack sound and viable technological base, but we are also perpetual victims of epidemics such as the Ebola outbreak that has caused disaster in some member countries.”
Very convincing…don’t you think? Find the entire statement here.
The request by the LDC Group of countries saw a lot of support from the governments of all developing countries, the European Union, WHO, UNDP, UNAIDS, civil society groups dealing in public health and many other non-governmental organizations in least developed countries in a meeting of the WTO TRIPS council in Geneva from 15th to 16th October 2015.
The US, historically known for its stand against such extensions opposed an indefinite waiver instead rooting for a 10 year extension. This has been heavily criticized by non- governmental organizations around the world.
“..By being the most aggressive in opposing a permanent waiver for LDCs, and by resisting longer terms for a time limited waiver, President Obama, Ambassador Michael Froman (U.S. Trade Representative), and Ambassador Michael Punke (U.S. Permanent Representative to the WTO) have shown they are unsympathetic to millions of poor people living in LDCs, who are suffering from a lack of basic resources, including affordable medicines.”- James Love, Director of Knowledge Ecology International.
However, a compromise was reached with the waiver being extended by the WTO TRIPS Council for 17 years, to 2030.This is significant in that LDCs have 17 more years to implement the pharmaceutical product patent provisions of TRIPS. They may choose to come up with patent laws covering pharmaceutical products and not implement them all the same until 2030 or until they have graduated to developing country status, whichever is earlier. The decision will be presented to the Tenth session of the WTO Ministerial Conference to be held on 15th to 18th December 2015- A WIN FOR LDCs!