[Ip-health] Control of anticompetitive practices --- WHO vrs WIPO and WTO

[James Love]

One of the tough issues in the WHO IGWG negotiations concerns the
language on the control of anti-competitive practices.

The European Commission, the United States and Japan are being asked to
support the removal of brackets on the text on this topic.  At this
point, the WHO runs the risk of having done less on this issue than has
the WTO or WIPO, which is an indication of the degree of pharma industry
influence with the negotiators from the "Group B" countries.

Below are examples of agreed upon texts on the control of
anti-competitive practices from the WIPO development Agenda and the WTO
TRIPS Agreement.   It will be an embarrassment for the WHO if it does
less than WIPO or the WTO on this topic.  Jamie

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The 45 Agreed Recommendations under the WIPO Development Agenda

Cluster A: Technical Assistance and Capacity Building

7. Promote measures that will help countries deal with intellectual
property-related anti-competitive practices, by providing technical
cooperation to developing countries, especially LDCs, at their request,
in order to better understand the interface between IPRs and competition
policies.

Cluster B: Norm-setting, flexibilities, public policy and public domain

23. To consider how to better promote pro-competitive intellectual
property licensing practices, particularly with a view to fostering
creativity, innovation and the transfer and dissemination of technology
to interested countries, in particular developing countries and LDCs


Cluster F: Other Issues

45. To approach intellectual property enforcement in the context of
broader societal interests and especially development-oriented concerns,
with a view that "the protection and enforcement of intellectual
property rights should contribute to the promotion of technological
innovation and to the transfer and dissemination of technology, to the
mutual advantage of producers and users of technological knowledge and
in a manner conducive to social and economic welfare, and to a balance
of rights and obligations", in accordance with Article 7 of the TRIPS
Agreement.


WTO TRIPS Agreement

	Article 8
	Principles

2.	Appropriate measures, provided that they are consistent with the
provisions of this Agreement, may be needed to prevent the abuse of
intellectual property rights by right holders or the resort to practices
which unreasonably restrain trade or adversely affect the international
transfer of technology.

	Article 31
	Other Use Without Authorization of the Right Holder
(k)	Members are not obliged to apply the conditions set forth in
subparagraphs (b) and (f) where such use is permitted to remedy a
practice determined after judicial or administrative process to be
anti-competitive.  The need to correct anti-competitive practices may be
taken into account in determining the amount of remuneration in such
cases.

	SECTION 8:  CONTROL OF ANTI-COMPETITIVE PRACTICES
	IN CONTRACTUAL LICENCES


	Article 40

1.	Members agree that some licensing practices or conditions pertaining
to intellectual property rights which restrain competition may have
adverse effects on trade and may impede the transfer and dissemination
of technology.

2.	Nothing in this Agreement shall prevent Members from specifying in
their legislation licensing practices or conditions that may in
particular cases constitute an abuse of intellectual property rights
having an adverse effect on competition in the relevant market.  As
provided above, a Member may adopt, consistently with the other
provisions of this Agreement, appropriate measures to prevent or control
such practices, which may include for example exclusive grantback
conditions, conditions preventing challenges to validity and coercive
package licensing, in the light of the relevant laws and regulations of
that Member.

3.	Each Member shall enter, upon request, into consultations with any
other Member which has cause to believe that an intellectual property
right owner that is a national or domiciliary of the Member to which the
request for consultations has been addressed is undertaking practices in
violation of the requesting Member's laws and regulations on the subject
matter of this Section, and which wishes to secure compliance with such
legislation, without prejudice to any action under the law and to the
full freedom of an ultimate decision of either Member.  The Member
addressed shall accord full and sympathetic consideration to, and shall
afford adequate opportunity for, consultations with the requesting
Member, and shall cooperate through supply of publicly available
non-confidential information of relevance to the matter in question and
of other information available to the Member, subject to domestic law
and to the conclusion of mutually satisfactory agreements concerning the
safeguarding of its confidentiality by the requesting Member.

4.	A Member whose nationals or domiciliaries are subject to proceedings
in another Member concerning alleged violation of that other Member's
laws and regulations on the subject matter of this Section shall, upon
request, be granted an opportunity for consultations by the other Member
under the same conditions as those foreseen in paragraph 3.


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James Love, Knowledge Ecology International (KEI)
http://www.keionline.org, mailto:james.love@keionline.org
voice +1.202.332.2670, fax +1.202.332.2673, US mobile +1.202.361.3040, Geneva mobile +41.76.413.6584

When everyone thinks the same, no one thinks.  Bill Walton remix of Walter Lippmann