[Ip-health] IP-Watch: Debate On Malaria And Trade Flexibilities At WHO

[Thiru Balasubramaniam]

http://www.ip-watch.org/weblog/index.php?p=3D524&res=3D1024_ff&print=3D0


6/2/2007

Debate On Malaria And Trade Flexibilities At WHO


By Tove Iren S. Gerhardsen


A recent top-level meeting of the World Health Organization discussed
member states=92 rights to address malaria using flexibilities in
international trade and intellectual property law. But there was strong
disagreement as to how far this language should go, according to
sources.

At the 22-30 January WHO Executive Board meeting, some developing
countries wanted a draft agreement to include language urging WHO
member states to include in their national laws flexibilities found in
international law - which allow, under certain conditions, the
bypassing of patents - in order to access anti-malarial medicines,
sources said.

The United States referred to language in an earlier, already agreed
resolution (WHA57.14), which says member states should consider, when
necessary, adapting national legislation to allow them to use trade law
IP flexibilities. But it did not want to link this directly to proposed
language on access to medicines and technologies, sources said.

Several versions of the language appeared during the meeting. The
language on access appeared directly linked with flexibilities in a 25
January draft, but these points were broken into two paragraphs in a
draft version from 1 February 2007 (EB120.R16).

The World Trade Organization (WTO) Agreement on Trade-Related Aspects
of Intellectual Property Rights (TRIPS), which contains flexibilities,
was mentioned in the earlier conference paper entitled, =93Malaria,
including a proposal for establishment of World Malaria Day=94
(EB120/Conf.Paper No. 8).

A 25 January version of the draft resolution (containing amendments
proposed by delegations to draft resolution contained in EB120/5) urged
member states, =93to provide in their legislation for use to the full of
the flexibilities contained in the agreement on TRIPS in order to
increase access to anti-malarial medicines, diagnostics and preventive
technologies=94 (Article 1.3).

The TRIPS agreement allows for a government to issue a compulsory
license and thereby use a patented subject matter without the consent
of the patent holder in times of a national emergency, extreme urgency
or for public non-commercial use, according to TRIPS Article 31.b.

=93It was agreed that the resolution goes to the 69th World Health
Assembly with the two wordings for discussion at the assembly,=94 Dr
James Nyikal, director of medical services at the Kenyan Ministry of
Health, told Intellectual Property Watch. =93We were not satisfied with
this,=94 he said. =93We would have preferred a clear decision at the board
level, how we shall pursue the matter further at the assembly in May
2007.=94

WHO declined to comment on the EB discussions or the process of the
draft resolution, and it is unclear what exact status document
EB120.R16 has. But WHO said that the debates would be taken onboard and
a new draft on malaria, with the changes incorporated, would be ready
by the assembly in May.

A government source told Intellectual Property Watch that the United
States proposed agreed language on TRIPS from an earlier agreed-to
resolution, WHA57.14, in order to find consensus. This paragraph urges
member states to: =93consider, whenever necessary, adapting national
legislation in order to use to the full the flexibilities contained in
the Agreement on Trade-Related Aspects of Intellectual Property Rights=94
(Article 2.4).

The United States agreed to refer to =93anti-malarial medicines,
diagnostics and prevention technologies=94 - but not linked to the TRIPS
language found in WHA57.14, the government source said.

The 1 February draft version (EB120.R16) of the malaria resolution now
contains the TRIPS language from the earlier resolution in one
paragraph, which, =93Urges member states =85 to consider, whenever
necessary, adapting national legislation in order to use to the full
the flexibilities contained in the Agreement on TRIPS,=94 (Article 1.5).

The 1 February draft then contains a separate paragraph mentioning
medicines:

=93 =85 to aim at reducing transmission risk-factors through integrated
vector management, promoting improvement of local and environmental
conditions and healthy settings, and increasing access to health
services, anti-malarial medicines, diagnostics and preventative
technologies in order to reduce the disease burden,=94 according to
EB120.R16.

Earlier versions, including one from 29 January, still showed the two
issues together in the same paragraph. Some countries argue the linking
of the two issues is one of the options before the assembly.

Kenya and the United States

Kenya and the United States were particularly involved in the
discussions, sources said. =93Kenya wanted a language that =91urges=92 memb=
er
states to =91include=92 in their legislation TRIPS agreements in order to
improve access to anti-malarial drugs, diagnostics and technology,=94
Nyikal said.

Dr Ahmed Ogwell, head of international health relations at the Ministry
of Health in Kenya, said that Kenya =93vigorously=94 supported including
language referring to compulsory license in the malaria resolution.
=93Too many people, especially women and children, are dying of malaria
while solutions exist and are only inaccessible due to cost,=94 he said.

According to WHO, =93Malaria is an infection caused by a parasite and
carried from person to person by mosquitoes. It is preventable and
curable but kills more than one million people - most of them young
children living in Africa - each year.=94

The resolution also proposes that 25 April be commemorated annually as
Malaria Day, and mentions the =93substantial resources=94 available from a
variety of organisations.

---------------------------------
Thiru Balasubramaniam
Geneva Representative
Knowledge Ecology International (KEI)
voice +41.22.791.6727
fax +41.22.723.2988
mobile +41 76 508 0997
thiru@keionline.org