[Ip-health] IP-Watch: US Advises Developing Country FTA Partners Not To Follow WHO IP Plan

[Thiru Balasubramaniam]

http://www.ip-watch.org/weblog/index.php?p=3D485&res=3D1024_ff&print=3D0

11/12/2006

US Advises Developing Country FTA Partners Not To Follow WHO IP Plan

By Tove Iren S. Gerhardsen

The United States has busily negotiated bilateral free trade agreements
with a variety of developing countries in recent years, and now appears
to be using these to influence those countries=92 positions in
multilateral bodies such as the World Health Organization (WHO).

Developing countries that have free trade agreements (FTAs) with the
United States received an email in the form of a =93d=E9marche=94 from the =
US
government before the 4-8 December meeting of the WHO Intergovernmental
Working Group on Public Health, Innovation and Intellectual Property
Rights. The demarche said that it had become apparent that the WHO was
trying to go beyond its competency and address intellectual property
rights and trade, which could have impact on the scope and effect of
FTAs, according to a government source.

This, the email said, and the proposed global framework described in
World Health Assembly resolution WHA59.24 from May this year, could
potentially harm the patent system. The United States was therefore
proposing a more =93pragmatic=94 solution, as it appeared the WHO tried to
go beyond its technical expertise, the source said.

The working group was mandated by the resolution, which states that it
should come up with: =93a global strategy and plan of action in order to
provide a medium-term framework based on the recommendations of the
commission=94 aiming at =93inter alia, securing an enhanced and sustainable
basis for needs-driven, essential health research and development
relevant to diseases that disproportionately affect developing
countries.=94

This refers to the WHO Commission on Intellectual Property Rights,
Innovation and Public Health (CIPIH), which published with its
recommendations in April.

The US email also noted that these issues should be discussed at the
World Trade Organization (WTO) and the World Intellectual Property
Organization (WIPO), the source said.

A demarche is used for direct high-level government-to-government
communication. It is common practice for embassies to contact relevant
countries before meetings to lay out their view and ask for support,
and for this meeting, the United States wanted to ensure that the
meeting would not undermine the IP regime, according to a developed
country official.

Signing a free trade agreement with the United States usually carries
intellectual property-related terms that exceed those of international
rules like the 11-year-old WTO Agreement on Trade-Related Aspects of
Intellectual Property Rights (TRIPS).

A Peruvian official told a side meeting at a WIPO meeting last week
that the country somewhat hastily broke from its Andean region partners
and signed a deal with the United States last year because it was on
the verge of a presidential election. In the agreement, Peru agreed to
terms beyond the TRIPS agreement, and once the agreement takes effect,
it will have to check with the United States before agreeing to terms
in multilateral negotiations at international organisations. The Peru
agreement is expected to come before the US Congress this year for
ratification, but may already have legal effect in Peru, he said.

WHO and IP

On 7 December at the WHO meeting, Brazil also talked about WHO=92s
mandate in relation to IP, but instead of arguing that it should stay
out if it, Brazil said that WHO should do its own work based on its
=93own mandate from its own decision-making body,=94 with access to health
as the main objective.

Brazil said that the intergovernmental working group should avoid
=93trying to import mandates from other United Nations agencies,=94 adding
that WHO should analyse intellectual property as it relates to health
concerns, and =93take a health perspective on IP=94 as the objective should
be =93access to health.=94

The Brazilian delegate said WIPO dealt with the protection of IP per
se, and the WTO with liberalisation of trade.

Brazil particularly took issue with references to counterfeiting, and
said the CIPIH had not really dealt with this issue, which was now
pushed at the WTO as well as WIPO.

One developed country official told Intellectual Property Watch that
the intervention of Brazil was =93bizarre,=94 and that the suggestion that
counterfeit medicines is not a public health issue was a =93farce.=94 Also,
the source said, issues such as patent pools belong in WIPO, and had
nothing to do with WHO.

Other countries, including Canada and Norway, suggested that the plan
and strategy of action should state that no work here will duplicate
work in other organisations, but other countries took issue with this,
including the United States, Australia and Japan.

=93Work here should take into account work [in other organisations],=94 the
United States said, which also noted that the World Health Assembly had
not endorsed, but welcomed the CIPIH report.

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Thiru Balasubramaniam
Geneva Representative
CPTech
voice +41.22.791.6727
fax +41.22.723.2988
mobile +41 76 508 0997
thiru@cptech.org