[Ip-health] IP watch: Kenyan Parliament To Debate Scrapping Compulsory Licensing Powers

[Judit Rius Sanjuan]

Kenyan Parliament To Debate Scrapping Compulsory Licensing Powers
http://www.ip-watch.org/weblog/index.php?p=3D737&res=3D1280_ff&print=3D0

By Paul Garwood
Kenyan lawmakers are set to debate proposed amendments to a bill that,
if passed, would prevent the government from issuing compulsory licenses
to produce urgently needed medicines without seeking approval from the
patent holder.

The amendments, which involve deleting parts of Kenya=92s Industrial
Property Act of 2001, were first expected to be debated Thursday. But
Peter Munyi, an intellectual property lawyer in Nairobi close to the
issue, told IP Watch that parliamentarians were meeting late Wednesday
to discuss the proposed changes.

Opponents of amendments to Section 80 of the act said that if they are
ratified, they would stop the government from being able to issue
compulsory licenses for local manufacturers to produce drugs for public
health emergencies, such as antiretrovirals for HIV/AIDS patients and
antibiotics. The changes would also compel the government to negotiate
directly with patent holders to obtain needed medicines.

=93The amendments have not been thought through,=94 Nairobi-based IP lawyer
Robert Lettington said. =93It is not a good idea to cut off future options
to respond to emergencies.=94

Governments can issue compulsory licenses to produce medicines without
the patent holder=92s consent under the World Trade Organization Agreement
on Trade-Related Aspects of Intellectual Property Rights (TRIPS). The
TRIPS agreement allows countries, particularly in the developing world,
to manufacture drugs to safeguard public health.

Kenyan officials were not immediately available for comment. But
Lettington said the amendments had been proposed because the Industrial
Property Act in its current form did not offer compensation to
pharmaceutical companies whose products could be produced, under
compulsory licensing, by a state-approved company.

The amendments form part of an omnibus Miscellaneous Amendments Bill and
have been proposed several times since the Industrial Property Act was
enacted in 2001. The bill was expected to go before Parliament in 2006
but was withdrawn at the last minute (/IPW/, Public Health, 21 December
2006 <http://ip-watch.org/weblog/wp-trackback.php?p=3D497>).

Complicating the issue, lawyers said, is that the ministries of health
and trade are not taking responsibility for suggesting the proposed
amendments, which were first floated more than five years ago by the
state-run Kenya Industrial Property Institute. This fact alone, Munyi
said, could lead to the amendments being scrapped altogether by the
Ministry of Justice and Constitutional Affairs.

=93Neither the Ministry of Health nor Ministry of Trade are taking
responsibility for the proposed amendments and we are hearing that the
Ministry of Justice may well reject the amendments on these procedural
grounds alone,=94 Munyi said.

Munyi said he had no knowledge of whether large pharmaceutical companies
had been involved in lobbying for the deletion of the compulsory
licensing provisions, but added that they would be the major
beneficiaries of any such act.

Kenya has no history of issuing compulsory licenses. Most of the
country=92s acquisition of medicines has been done via parallel
importation, mainly from India, which is a prime source of low cost,
high quality pharmaceuticals.

Paul Garwood may be reached at pgarwood@ip-watch.ch.

/This work is licensed under a Creative Commons License
<http://creativecommons.org/licenses/by-nc-sa/2.5/>. All of the news
articles and features on Intellectual Property Watch are also subject to
a Creative Commons License
<http://creativecommons.org/licenses/by-nc-sa/2.5/> which makes them
available for widescale, free, non-commercial reproduction and translation.=
/

/You can subscribe for automatic notifications of these stories, via the
RSS feed <http://www.ip-watch.org/weblog/wp-rss2.php> or via the e-mail
alerts <http://www.ip-watch.org/weblog/subscribe.php?res=3D1280_ff>.
Subscribers can choose the frequency of notifications as well as
particular topics of greatest interest to them./



--
Judit Rius Sanjuan
Attorney
judit.rius@keionline.org

Knowledge Ecology International (KEI)
www.keionline.org / www.cptech.org
1621 Connecticut Ave, NW, Suite 500 Washington, DC 20009 USA
Tel.: +1.202.332.2670, Ext 18 Fax: +1.202.332.2673