[Ip-health] Bill Haddad on WTO's "Celebration" of TRIPS' 10 Year Anniversary

[Mike Palmedo]

Mike can you please put this on the net for me?  Ironic that this week,
WTO is "celebrating" the Tenth Anniversary of TRIPS.
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A personal commentary...

WTO "CELEBRATES" TRIPS TENTH ANNIVERSARY IN BRUSSELS THIS WEEK ...IT
SHOULD BE A WAKE FOR DOHA AND THE POOR NATIONS OF THE WORLD BUT NO ONE
SEEMS MUCH INTERESTED.

By Bill Haddad, Chariman/CEO, Biogenerics, Inc.

The TRIPS "celebration" this week in Brussels will only be another step
towards the disaster that faces the poor nations of the world at the
beginning of next year unless those concerned stand up and be heard.  At
the moment, there appears to be a deadly silence.

This "celebration" can provide us with a platform for our views to be
heard. We should not miss the opportunity.

As you know, on January 1, 2005, all new medicinal products, worldwide
(a few exceptions) will have a twenty year patent life (from time of
filing). ***

So-called "least developed nations."...the forty-nine nations designated
in Doha in 2002...theoretically have an exception from TRIPS until 2016
and can use compulsory licenses to provide medicines to their
populations (see below as that minefield is described) but left out were
the only nations (India, Thailand, Brazil and others) that have provided
the poor countries of the world with their medicines at affordable
prices. Bottom line: most of the nations included in the exemption at
this time lack the resources or the market to develop financially viable
pharmaceutical industries.

In clear language, what does this portend?  If a cure for certain types
of cancer, or a medicine to avoid heart attack, or diabetes, or asthma,
or any of the major diseases that afflict both the developed and
developing world, is invented or discovered, these medicines will not be
affordable to most if not all of the nonwestern world; six hundred
million people will have access and three billion will not.  AIDS was
only the harbinger of what will happen when TRIPS kicks in and its
limitations discovered disease by disease.  That is not an emotional
interpretation, but a factual reality.

A LITTLE HISTORY OF HOW WE GOT LEFT BEHIND....

The invitation only meeting in Brussels on June 23 and 24th offers those
who stood up to be counted at Doha a platform to be heard in time for a
reaction to the realities of TRIPS.  It won't be easy. Truth and honored
promises are not the hallmarks of what has happened prior to this
"celebration."

You may recall, that on the very day that US Trade Representative
pledged the support of the United States for the Doha declaration
...when he humbly accepted with a shy smile the praise the poor nations
of the world and the NGOs  heaped on him... there was included in the
so-called "Fast Track" legislative authority for the US President to
negotiate trade deals (allowing only an up or down vote in the Congress)
a clause that not only negated the US pledge,  but committed the US to a
"TRIPS Plus" position. That secret... (no quotes here)... that secret
clause was never considered by the House of Representatives, never
reviewed in Committee and never seen by the Congressmen who by one vote
approved the legislation. It was discovered by accident as the
legislation moved to the US Senate.

As we all know, the Doha agreement was to be ratified before the end of
2002, but in late December, when all nations but one were in agreement,
the WTO Ambassadors sat around for two nights waiting for the US
answer.  Pascal Lamy (EU Trade Commissioner) ...who on occasion can be
trusted as an honest broker...personally told me that a call believed to
have originated in the office of the US Vice President, killed the Doha
agreement. The multinational companies insisted that they, not the poor
nations, determine what diseases should be covered. Unfortunately, the
media took the easy newslead, soundbite bait prepared by the
multinationals and reported these companies were worried that medicines
for obesity and erectile dysfunction would be included in the blanket
authority. The result: no serious discussion in the media of what
happened to Doha.

(Sorry, media, this comes from someone who spent many years as an
investigative reporter and editor.)

Fearful that the pharmaceutical issue would combine with the
agricultural issue at the WTO September 2003 meeting in Cancun, the WTO
Ambassadors met in Geneva at the end of August 2002 to once again
consider what was openly discussed as the "Pfizer" proposal and five
nations went selected to find a compromise. They met in secret for
several days and at the conclusion of each meeting, even their notes
were collected.  One younger delegate who refused to go along with the
U.S. position had his WTO Ambassadorship threatened.

Eventually the US agreed to allow the nations to select the illness for
which a compulsory pharmaceutical license would be an option.  All
nations agreed to the compromise and welcomed the exclusion of the
discussion at Cancun.  But when the "small print" of the compromise
became public, the NGOs and others protested, but it was too late. What
remains as process is a minefield without a map.  To date, only one
nation has sought to exercise its compulsory license rights (Malaysia
with Cipla) and another may decide on this process.  Almost all of the
nations involved cannot afford the expensive life saving medicines now
in the marketplace yet they are not utilizing the option of compulsory
licensing either on a national or regional basis.

In recent discussions, countries complain the process is uncertain and
complicated.  They believe national legislation must first be enacted
(opening the door to multinational protests); then the decision is
relayed to WTO where it is unclear whether this is merely a
"notification" or it must be vetted and as a consequence drops into the
/WTO political sinkhole. Finally, the exporting nation must also enact
legislation to make the process possible.

If nothing else, the Brussels meeting must clarify and announce the
precise procedures a poor nation must undertake to obtain a compulsory
license and immediately offer a public workshop in Geneva for these
nations to comprehend the procedure.

Most exporters to poor nations believe the patent holder is entitled to
a five percent royalty on sales using a process similar to the
compulsory licensing program formerly used by Canada. It is believed
that the Canadian law was revoked based on an "understanding" between
the US and Canada as part of the NAFTA "free trade" agreement.

For those of us who were not "born yesterday" what is happening is no
secret. The United States government, using trade agreements as a foil
and "intellectual property" as an argument, hide one of the worst
aspects of so-called globalization: the role of the multinational
pharmaceutical companies in manipulating the puppets that disguise their
goals.  While the U.S. government and most of the WTO western members
castigate the NGOs and others to abide by international trade
agreements, they "go around the barn" and negotiate regional and
bilateral agreements that violate and extend the TRIPS agreements and
provide a second line of defense against even the enforcement of the
Doha agreement. This deception is often overlooked by the media because
of the "bells and whistles" attached to the announcements. The
concessions to the multinational pharmaceutical companies are often
hidden from easy view.

One way out of this dilemma is to establish two TRIPS: one, TRIPS North
for the developed nations and TRIPS South for the poor nations of the
world.  Affordable pharmaceuticals are now provided on a South-to-South
basis. If TRIPS does not adopt the Doha Declaration, then this process
should be institutionalized. Only the combined actions of the countries
involved...as they joined together at Doha...can bring this about. No
one believed that last year's Cancun meeting would end in a stalemate,
but it did because the bypassed countries spoke up in their own
self-interest and were not blinded by the promised "goodies" if they
went along quietly with TRIPS.

(Please note: This writer is not against "globalization" nor is he is he
against "patents" but each of those words needs as asterisk so they can
be to be clearly and carefully explained and exceptions to the rule
noted, as they were at Doha.  Now they are little more than journalistic
and political cliches with the asterisk dropped and the careful
exceptions not noted. This is especially true when lifesaving,
life-prolonging and pain alleviating medicines are concerned).*

What Is Our Potential and What are our Options in Brussels?

At Brussels, in or out of the meeting, our views need to be discussed
and heard and the media influenced to simplify the argument to the hard
facts of what will begin to evolve on the first day of 2005.

I am stunned by the arrogance of calling the Brussels meeting a
"celebration. I prefer to call it a "wake" or a "funeral march" and I am
reminded of what the Pope and the Vatican said of the denial of
affordable AIDS medicines in Africa...they called it a "genocide."  What
will unfold unless we are successful in at least having Doha reinstated,
is a slow genocide, disease by disease, a cruelty that is hard to
imagine in so-called modern and civilized times.

Can I suggest two possible steps towards a solution: in Brussels demand
that actions be taken to insure that Doha is restored...not just words
or pledges, but actions with the proof that nations enact these rights.
Then we must work towards including those nations that can produce the
medicines by a non-patent infringing process, as now exists, to be
included in the 2016 definition of "least developed nations."

I am still a bit of an idealist, and I believe there is a viable avenue
for the multinationals to create a process that will provide these
medicines expeditiously to the poor nations of the world if for no other
reason that to protect their western markets. Ironically, I consider
some of the CEOs of the multinational companies involved (Merck, Glaxo)
as potential allies who are trapped by stockholders and Wall Street and
for us the quickest way to get them to creatively do what they
could/would/should do on their own is to stir up the stockholders and
put the pressures on Wall Street. As I said, I am still a bit of an
idealist.

I will be in Brussels, inside as an invited guest, but without the
platform requested, so let me hear from you there or now.

Thanks for listening.