CPT statement on EC/H/J/K/S/T draft TRIPS statement

[James Love <love@cptech.org>]

Date:	December 2, 1999

     Consumer Project on Technology comments on the draft Common Working
     Paper of the EC, Hungary, Japan, Korea, Switzerland and Turkey to the
     Seattle Ministerial Declaration, as it relates to the TRIPS agreement
     and access to drugs

The Consumer Project on Technology (http://www.cptech.org) is a non profit
organization  created by Ralph Nader that has worked on trade disputes
involving health care for several years, including disputes involving
access to medicines in South Africa, Thailand, Pakistan, India, many other
countries.  CPT has extensive information about these disputes on the web
at http://www.cptech.org/ip/health.

CPT, like other consumer and public groups such as MSF, Health Action
International and Consumers International, welcomes the effort by the EC,
Hungary, Japan, Korea, Switzerland and Turkey in a draft working paper to
raise the issue of compulsory licensing of patents for essential
medicines.  Unfortunately, in its present formulation, the language could
be interpreted to significantly reduce the scope of compulsory licensing,
and should be changed or eliminated.

The current EC/H/J/K/S/T draft proposal on TRIPS and access to medicines
reads:

     The TRIPS Agreement, and in particular Article 31, shall be
     understood to permit developing countries to issue, in accordance
     with the provisions laid down in this article and other relevant
     articles, compulsory licenses for drugs appearing on the list of
     essential drugs of the World Health Organization.

Right now all countries clearly have the authority to use compulsory
licensing for all patents in all fields of technology.  The WHO  list of
essential drugs only has a handful of patented drugs on its list,
including no drugs for the treatment of HIV infected persons (the only HIV
drug on the WHO essential drugs list is AZT, and only for the prevention
of mother to child transmission of HIV, not to treat persons already
infected).

The EC/H/J/K/S/T draft proposal is political statement, not a change in
the TRIPS, but it would be a mistake to adopt it in its present form.   We
agree with MSF and HAI that the statement could be fixed, by changing the
language as follows:

     The TRIPS Agreement, and in particular Article 31, shall be
     understood to permit developing countries to issue, in accordance
     with the provisions laid down in this article and other relevant
     articles, compulsory licenses for drugs, including those appearing on
     the list of essential drugs of the World Health Organization.

An alternative wording would be:

     The TRIPS Agreement, and in particular Article 31, shall be
     understood to permit developing countries to issue, in accordance
     with the provisions laid down in this article and other relevant
     articles, compulsory licenses to improve access to medicines.

Even better would be:

     The TRIPS Agreement, and in particular Article 31, shall be
     understood to permit developing countries to issue, in accordance
     with the provisions laid down in this article and other relevant
     articles, compulsory licenses to improve access to medicines. Article
     27.1 of the TRIPS regarding the obligation to extend patents to all
     fields of technology should not be understood to prevent a country
     from providing special provisions in patent law to provide access to 
     medicines.  Article 30 of the TRIPS should be understood to permit
     producers of pharmaceuticals to export drugs to developing countries
     that have issued a TRIPS consistent compulsory license, thereby
     enabling countries that have small domestic markets to benefit from
     compulsory licensing to obtain access to medicines for HIV/AIDS and
     other public health problems.


For more information, contact James Love love@cptech.org, Seattle Cell
phone number (until December 4) 425.985.3999.   If calling from a Seattle
telephone, dial area code but not the country code.
 
------------------------------- James
Love Center for Study of Responsive Law | Consumer Project on Technology 
P.O. Box 19367, Washington, DC 20036 | http://www.cptech.org
Voice 202/387-8030 | Fax 202/234-5176 | love@cptech.org