[Ip-health] James Love to Senate Finance Committee on USG Demarche on IGWG

[Thiru Balasubramaniam]

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[ Picked text/plain from multipart/alternative ]

This communication concerning a US government demarche to certain
Latin American countries (issued during the week of October 29-Nov 2)
on the IGWG negotiation was sent by James Love to the Senate Finance
committee and the Ways and Means committee on Nov 2, 2007.

From: James Love <james.love@keionline.org>
Reply-To: james.love@keionline.org
To: amber_cottle  Senate Finance

CC:   DAVID_MORFESI, USTR


Subject: USG Demarche on IGWG negotiation
Date: Fri, 02 Nov 2007 13:29:16 -0400

Dear Amber,

Below is a Demarche apparently sent by the US government to certain
developing countries, concerning next week's WHO Intergovernmental
Working Group on Public Health, Innovation and Intellectual Property
(IGWG).   I believe it was distributed earlier this week.  The Demarche
is part of a larger effort by the US negotiators to block proposals from
several developing countries that would promote new approaches to the
global framework to support medical R&D, or develop ways of implementing
the 2001 Doha Declaration on TRIPS and Public Health.

*  One target of the Demarche is the so called "Rio Text" for the
negotiation, which all public health groups support. It is much stronger
document than the text created by the WHO secretariat, and one that
actually takes the 2001 Doha Declaration mandate seriously, and which
would extend its basic provisions to bilateral and regional trade
agreements.

*  Another point addresses discussions regarding a possible medical R&D
treaty.  The USG position on the medical R&D treaty has changed over
time. For three years the Bush Administration echoed pharma industry
opposition to an R&D treaty.  In May 2006, the Bush Administration
softened, and supported a very good resolution on this topic (WHA59.24),
which created the WHO IGWG and the current terms of reference.  In the
Spring of 2007, the Bush administration said it was open to a treaty on
medical R&D, in a TACD meeting in Brussels.  Now they seem to be back in
the old pharma position on this issue.  The discussions about the R&D
treaty issue in the Demarche are deliberately incomplete and omit the
sections of the CIPIH report which propose further discussions of an R&D
Treaty, or more important, the many conversations about this topic,
which go far beyond a single 2005 experts proposal, including several
country submissions on this topic.

*  The Demarche mounts a strange argument that the WHO does not have
"technical competence" and should not "advise its Member States on
trade-related matters, including intellectual property." This is
contrary to a string of WHO resolutions on this topic, including for
example the 1999 WHA52.19, as well as more recently, for example,
WHA53.14, WHA54.10, WHA57.14, WHA59.24 and WHA60.30.   This issue has
been debated so many times it is surprising the USG still asserts the
WHO should not address the relationship between health and intellectual
property.

*  The USG is actively trying to modify the make-up of some Latin
American delegations, and the Demarche makes a reference to this effort
here, with the statement that "We hope that your government will include
trade, economic, and/or intellectual property officials on your
delegation."   We think it is inappropriate for the USG to tell these
countries who should be on their own delegations.  In the past, in the
context of other negotiations, the US has often tried to get some
individuals removed from delegations, a fact that is well known among
developing country negotiators.

*  The references to the scope of disease issue are quite misleading.
Everyone accepts the idea that the IGWG R&D focus should be on diseases
that disproportionately impact developing countries.  But the CIPIH and
the now the IGWG are also supposed to deal with access to medicines for
all diseases, implementing the mandate of paragraph 4 of the Doha
Declaration on TRIPS (assuming someone in the US government actually
believes this means something).

  Jamie Love, KEI


--------------USG Demarch------------------------
Intergovernmental Working Group on Public Health, Innovation and
Intellectual Property (IGWG) on November 5-10, 2007 in Geneva

The 59th World Health Assembly (WHA), which is the supreme governing
body of the World Health Organization (WHO), met in May 2006.

The Assembly considered the Report of the WHO-mandated Commission on
Intellectual Property Rights, Innovation, and Public Health (CIPIH)
entitled "Public Health, Innovation and Intellectual Property Rights,"
which had been issued in April 2006.  The Commission Report made a wide
range of recommendations, including that countries not negotiate IP
provisions in trade agreements that go beyond the minimum standards set
out in the WTO TRIPS agreement.

The Health Assembly adopted two resolutions related to the Report.  The
first resolution established an Intergovernmental Working Group (IGWG)
with the mandate to develop a global strategy and plan of action based
on the recommendations of the CIPIH Report to support research and
development relevant to diseases disproportionately affecting developing
countries; the second urged Member States to promote a multi-sectoral
dialogue at the national level to consider the interplay between
international trade and health.

The first IGWG met in Geneva from December 4-8, 2006.  At the conclusion
of that meeting, the WHO Secretariat issued a progress report entitled
"Elements of a Global Strategy and Plan of Action" (A/PHI/IGWG/1/5).
This document was subject to a comment period by Member States; the WHO
Secretariat considered those comments and issued the most recent
document entitled "Draft global strategy and plan of action on public
health, innovation and intellectual property"  (A/PHI/IGWG/2/2).

This second document (A/PHI/IGWG/2/2) will be negotiated at the second
IGWG, which will meet in Geneva from November 5-10, 2007. Prior to the
November meeting, each of the six regions of the WHO will have held a
consultation on this document.  Brazil hosted a sub-regional meeting of
"like-minded" countries where a position paper supported by some Latin
American countries was put forth.

In the first IGWG (December 2006), it quickly became apparent that
several countries wanted the WHO Member States to agree: 1) to expand
the mandate of the IGWG beyond "diseases that disproportionately affect
developing countries" to include a wider range of diseases; 2) that IP
provisions in FTAs adversely affect access to medicines; 3) that
countries should make substantive patent law changes; and 4) that the
WHO Secretariat, despite its lack of specific competence in intellectual
property or trade issues, should support countries in these areas.

There could be a push by some WHO member states during the second IGWG
(November 2007) for a "global framework" in the context of research and
development relevant to diseases that particularly impact developing
countries.  This "global framework" proposal has the potential to
undermine existing research and development incentives and to harm the
patent system and the incentives to innovation that it offers.  One such
proposal, referred to as the "Medical R&D Treaty", was submitted to and
considered by the CIPIH in its Report.  The CIPIH examined the proposal
and determined that there was insufficient evidence to make any
recommendations about the merits of the proposal.

There may also be a push by Brazil or other like-minded countries to use
the Latin American position paper as the basis of the negotiation.  As
member states have presumably been reviewing the WHO issued document
(A/PHI/IGWG/2/2), the United States believes this document should be the
only basis for negotiation and progress at the upcoming IGWG would be
made more difficult and delayed significantly if the Latin American
position paper were used as the basis of the negotiation.

The United States is working to develop a more pragmatic,
results-oriented approach at the second IGWG that will promote increased
research and development relevant to diseases that disproportionately
affect developing countries while also supporting strong intellectual
property rights and innovation.

The United States believes that the WHO Secretariat goes beyond its
technical competence when it seeks to advise its Member States on
trade-related matters, including intellectual property.  Further, the
United States believes that the WHO should not set parameters by which
WTO member states can negotiate their trade agreements.  The United
States would like to make sure you are aware of the potentially negative
trade and intellectual property implications that could arise from this
initiative at the WHO.

The United States seeks your government's support to ensure pragmatic,
constructive approaches during the upcoming November 5-10 IGWG meeting.
We hope that your government will include trade, economic, and/or
intellectual property officials on your delegation to the second IGWG
meeting in Geneva from November 5-10 in order to ensure trade issues are
fully and appropriately considered.

The United States hopes you will join us at the WHO meeting in
reaffirming the importance of trade liberalization in improving public
health and, working with other WHO Member States, finding consensus on a
way forward that recognizes the importance of intellectual property in
spurring innovation.