[Ip-health] Doha paragraph 7

[Toby Kasper]

Dear all,

The Doha Declaration does not specially address this point.  However, while
TRIPS prohibits developing countries from moving to a lower level of
protection for intellectual property while availing themselves of the
transition periods to implement TRIPS (Article 65.5 of TRIPS), there is no
such requirement for LDCs.  In other words, reading the Doha Declaration
with TRIPS, LDCs are free to amend their national legislations to exempt
pharmaceuticals from patent protection until at least 2016 (and after this
time they could apply for additional transition periods).

There have been some questions raised as to whether LDCs that wished to do
this would then be required to offer exclusive marketing rights for
pharmaceutical products (TRIPS requires that countries that did not offer
patent protection for pharmaceuticals in 1995 to set up mailbox provisions
to accept applications for new pharmaceutical products and also requires
that these products be conferred with exclusive marketing rights for a
period of five years or until a patent is granted or rejected [see TRIPS
Articles 70.8 and 70.9]).  However, the express wording of TRIPS 70.8 refers
only to countries that did not offer patent protection in 1995: it does not
cover countries that subsequently move to exempt pharmaceutical products
from patentability, meaning that such countries are not obliged to enforce
EMRs.  Such a reading is consistent both with Para 4 of the Doha Declaration
(which calls for TRIPS to be interpreted in a manner conducive to the
promotion of "access to medicine for all") and with Para 7, which is clearly
intended to help LDCs avoid the public health problems arising from patent
protection on pharmaceuticals.  If LDCs have to offer market exclusivity in
the form of EMRs, this purpose is frustrated (particularly since I believe
that the only two LDCs that currently do not allow pharmaceuticals to
receive patent protection are Angola and Madagascar, meaning that in effect
the Para 7 transition period extension to 2016 would only apply to them,
which was clearly not the intent).

Best,
Toby Kasper
Médecins Sans Frontières




-----Original Message-----
From: ip-health-admin@lists.essential.org
[mailto:ip-health-admin@lists.essential.org]On Behalf Of Khalil Elouardighi
Sent: Thursday, April 11, 2002 12:35 AM
To: ip-health@lists.essential.org
Subject: [Ip-health] Doha paragraph 7

Does anyone know whether paragraph 7 of the Doha Declaration allows LDCs to
scale down the level of IPP they already grant to pharmaceuticals (as
opposed to only allowing LDCs that don't protect drug patents at all to
continue doing so until 2016) ?

Khalil Elouardighi
ACT UP-Paris

_______________________________________________
Ip-health mailing list
Ip-health@lists.essential.org
http://lists.essential.org/mailman/listinfo/ip-health