Canada has asked WTO if patent extensions are TRIPS compliant

[James Love <love@cptech.org>]

In reviewing US/PhRMA assertions that compulsory licensing of
pharmaceuticals would be a violation of the non-discrimination
provisions of TRIPS Article 27.1, I asked the WTO for information
on the status of pharmaceutical patent extensions. Pharmaceutical
patent extensions raise similar legal issues, but in a context
where PhRMA/IFPMA interests were on the other side.  (PhRMA/IFPMA
support patent extensions).

WTO sent me a copy of a December 1998 communication from Canada,
raising precisely this issue.  Apparently Canada, in fighting an
EU complaint against its own pro-generic industry patent laws is
asking the WTO if the EU pro-PhRMA patent term extensions are 
TRIPS compliant, under the same Article 27.1 provisions.

This is a pretty important issue, because if countries can't make
sector specific provisions for patent laws, it will be very
difficult to accomplish a number of country social objectives. 
The US Clean Air Act, laws dealing with energy patents, patent
exceptions for medical research, and many other items would
appear to be subject to challenge on similar grounds.
			
I would hope that TACD and other groups could provide a comment
to the WTO on this issue, and I'll try to draft something. 


  Jamie


-------------------
WORLD TRADE
ORGANIZATIONWT/DS153/1
IP/D/15
G/L/283
7 December 1998(98-4887)Original:  	English


EUROPEAN COMMUNITIES - PATENT PROTECTION FOR PHARMACEUTICAL AND
AGRICULTURAL CHEMICAL PRODUCTS
Request for Consultations by Canada

	The following communication, dated 2 December 1998, from the
Permanent Mission of Canada to the Permanent Delegation of the
European Commission and to the Chairman of the Dispute Settlement
Body, is circulated in accordance with Article 4.4 of the DSU.

_______________


	Pursuant to Article 4 of the Understanding on Rules and
Procedures Governing the Settlement of Disputes (DSU), Article 64
of the Agreement on Trade-Related Aspects of Intellectual
Property Rights (TRIPS Agreement) in conjunction withArticle XXII 
of the General Agreement on Tariffs and Trade 1994 (GATT 1994), 
the Government of Canada requests consultations with
the European Communities on behalf of themselves and their Member
States regarding the protection of inventions in the area of
pharmaceutical and agricultural chemical products under the
relevant provisions of the European Communities legislation - (in
particular Council Regulation (EEC) No. 1768/92 and European
Parliament and Council regulation (EC) No. 1610/96) - in relation
to their obligations under the TRIPS Agreement.

	Under the above Regulation, a patent term extension scheme -
that is limited to pharmaceutical and agricultural chemical
products - has been implemented.

	In Canada's view, Council Regulation (EEC) No. 1768/92 and
European Parliament and Council Regulation (EC) No. 1610/96 are
incompatible with the obligation of the European Communities and
their Member States not to discriminate on the basis of field of
technology (as found in Article 27.1 of the TRIPS Agreement),
since they only apply to pharmaceutical and agricultural chemical
products.

	We look forward to receiving your reply to this request and
to selecting a mutually acceptable date for holding
consultations.


>From the WTO web page:

http://www.wto.org/wto/dispute/bulletin.htm


(9) Canada - Patent Protection of Pharmaceutical Products, complaint by
the European Communities (WT/DS114/1). This request, dated 19 December
1997, is in respect of the alleged lack of protection of inventions by
Canada in the area of pharmaceuticals under the relevant provisions of
the Canadian implementing legislation (in particular the Patent Act).
The EC contends that Canada's legislation is not compatible with its
obligations under the TRIPS Agreement, because it does not provide for
the full protection of patented pharmaceutical inventions for the entire
duration of the term of protection envisaged by Articles 27.1, 28 and 33
of the TRIPS Agreement. On 11 November 1998 the EC requested the
establishment of a panel. At its meeting on 1 February 1999, the DSB
established a panel. Australia, Brazil, Cuba, India, Israel, Japan,
Poland, Switzerland, and the United States reserved their third-party
rights.

(50) European Communities - Patent Protection for Pharmaceutical and
Agricultural Products, complaint by Canada (WT/DS153/1). This dispute,
dated 2 December 1998, is in respect of the protection of inventions in
the area of pharmaceutical and agricultural chemical products under the
relevant provisions of EC legislation, particularly Council Regulation
(EEC) No. 1768/92 and European Parliament and Council Regulation (EC)
No. 1610/96, in relation to EC obligations under the TRIPS Agreement.
Canada contends that under the above Regulations, a patent term
extension scheme, which is limited to pharmaceutical and agricultural
chemical products, has been implemented. Canada alleges that Regulations
(EEC) No. 1768/92 and (EC) No. 1610/96 are inconsistent with the EC's
obligations not to discriminate on the basis of field of technology, as
provided by Article 27.1 of the TRIPS Agreement, because these
Regulations only apply to pharmaceutical and agricultural products.