[Ip-health] IP-Watch: UN Special Rapporteur: IP In Health Helping Those With Most Means, Less Need

Tue Jun 16 08:29:14 2009

http://www.ip-watch.org/weblog/2009/06/16/un-special-rapporteur-ip-in-healt=
h-helping-those-with-most-means-less-need/

<SNIP>

States Respond to Report

The report received a mixed reception at the HRC, with the United
States and Switzerland in particular saying that Grover=92s report was
attempting to weaken the TRIPS agreement, according to a press release
summarising the council=92s discussions.

Achamkulangare Gopinathan of India said that TRIPS does not undermine
the rights of governments to take measures to protect public health,
and that the 2001 Doha Declaration on Public Health affirmed that
view, according to the press release. Norway, Australia and others
agreed that TRIPS flexibilities could be used to aid public health
goals, and Grover said his report did not extend beyond encouraging
the use of these flexibilities.

Jurg Lauber of Switzerland said that Grover=92s report indicated the
lack of market incentives was the main issue in explaining why
research and development for neglected diseases is also insufficient,
and needs be further explored, according to the release.

But =93the protection of public health must prevail over private
interests,=94 said Jean Feyder of Luxembourg. And Joelle Hivonnet of the
European Commission said there are =93growing difficulties=94 in getting
medications under patent produced in generic form, and asked if Grover
would look into the possibility of patent pools, in which rights
owners agree to licence intellectual property relating to certain
technologies as a collective, rather than as individual patents.

-------

16 June 2009
UN Special Rapporteur: IP In Health Helping Those With Most Means,
Less Need
By Kaitlin Mara @ 12:47 pm

Nearly two billion people lack access to the medical care they need,
and in the developing world those who do manage to have access are
overwhelmingly paying out-of-pocket, often triggering a fall into
poverty. The monopoly-making power of patents to drive the cost of
medicines beyond affordability is a significant contributor to this
disturbing trend, says a report of the United Nations rapporteur on
the right to health presented at last week=92s Human Rights Council.

The ultimate goal of developed countries =93was and is the universal
harmonisation of IP laws according to their standards,=94 the report
asserts. They have tried to push such harmonisation through the World
Trade Organization Trade-Related Aspects of Intellectual Property
Rights (TRIPS) agreement as well as through free trade agreements.
While flexibilities in TRIPS exist, developing nations often lack the
capacity to or are the subject of political pressure not to use them.

=93From a right to health perspective,=94 it adds, =93developing countries
and LDCs=94 need to use flexibilities that remain in the TRIPS
agreement, in particular to create exceptions to patent rights, issue
compulsory licences, and facilitate parallel importation.

Developing countries need to be particularly careful when negotiating
free trade agreements on a bilateral or regional basis, the report
says. Such agreements =93have extensive implications for pharmaceutical
patent protection=94 and =93are usually negotiated with little
transparency or participation from the public, and often establish
TRIPS-plus provisions [that] undermine the safeguards and
flexibilities that developing countries sought to preserve under TRIPS.=94

TRIPS-plus measures include extension of patentability terms, the
introduction of exclusivity of use on data gleaned from clinical
trials, the linking of a patent status with a drug registration and
approval (so generic versions of drugs under patent cannot be approved
for market), and the creation of new enforcement mechanisms.

These free trade agreements can =93severely impede access to medicines,=94
said report author special rapporteur Anand Grover, when he presented
[pdf] at the Human Rights Council on 2-3 June. The Human Rights
Council is meeting from 2 =96 18 June; the report is available here [pdf].

The special rapporteur on the right to health is mandated [pdf] to
submit an annual report to the Human Rights Council detailing
information about, and recommendations for improving, the realisation
of the right to the highest possible standards of physical and mental
health.

Grover expressed the hope, according to a summary of the 2-3 June
event, that the Human Rights Council would address these intellectual
property issues in the form of a resolution.

But it is unclear that they will do so. A member of the HRC
secretariat told Intellectual Property Watch that it is now up to the
member states to decide what to do with the report.

The report recommends that developing countries introduce national
laws incorporating TRIPS flexibilities, including procedures for
issuing compulsory licences. Full use of a grace period in adopting
all aspects of the TRIPS agreement afforded to least developed
countries should be encouraged, and TRIPS-plus standards should not be
introduced, it adds. And developing countries should seek - and
receive - technical assistance from international agencies to help
build their capacity in implementing TRIPS flexibilities, it concluded.

Anand Grover was appointed special rapporteur on the right of everyone
to the enjoyment of the highest attainable standard of physical and
mental health in the summer of 2008. As an attorney in India, he
directs the HIV/AIDS unit of the Lawyers Collective, a human rights
and public interest law firm. His full bio is available here.

States Respond to Report

The report received a mixed reception at the HRC, with the United
States and Switzerland in particular saying that Grover=92s report was
attempting to weaken the TRIPS agreement, according to a press release
summarising the council=92s discussions.

Achamkulangare Gopinathan of India said that TRIPS does not undermine
the rights of governments to take measures to protect public health,
and that the 2001 Doha Declaration on Public Health affirmed that
view, according to the press release.
Norway, Australia and others agreed that TRIPS flexibilities could be
used to aid public health goals, and Grover said his report did not
extend beyond encouraging the use of these flexibilities.

Jurg Lauber of Switzerland said that Grover=92s report indicated the
lack of market incentives was the main issue in explaining why
research and development for neglected diseases is also insufficient,
and needs be further explored, according to the release.

But =93the protection of public health must prevail over private
interests,=94 said Jean Feyder of Luxembourg. And Joelle Hivonnet of the
European Commission said there are =93growing difficulties=94 in getting
medications under patent produced in generic form, and asked if Grover
would look into the possibility of patent pools, in which rights
owners agree to licence intellectual property relating to certain
technologies as a collective, rather than as individual patents.

According to the summary, Victoria Romero of Mexico added that in the
case of pandemics, such as the recent outbreak of H1N1 or swine flu,
responses should take into account the =93full respect of human rights
and fundamental freedoms.=94

And Muhammed Saeed Sarwar of Pakistan suggested technology transfer
should be encouraged in order to help developing countries improve
their capacity to manufacture medicines.

Access to and innovation of medicine is more complex than just IP
rights, said Imad Zuhairi of Palestine, despite the fact that IP is an
important incentive for innovation. Situations of poverty and
occupation, such as exist in Gaza, may prevent access to health care
no matter the IP regulation, added Sarwar, asking how the free flow of
technology could be accomplished =93for people whose movements were
restricted.=94

The Role of Pharmaceutical Companies

Others said that non-state actors, especially international
pharmaceutical companies, have a key role in access to medicines that
needed further consideration.

Pharmaceutical companies as well as states have a duty to respect the
human right to health, said Grover. As a part of his role he visited
the offices of brand drug producer GlaxoSmithKline in London, and
found that they had made strides in aiding the goal of access to
medicines by reducing the prices of their drugs in least developed
countries and via patent pooling. Some still remain unaffordable,
however, and the company had previously, for example, sued South
Africa in an attempt to stop a law intended to make use of TRIPS
flexibilities to create generic competition on drugs for HIV/AIDS.
Grover encouraged GSK to publicly commit not to push for TRIPS-plus
regulation.

Kaitlin Mara may be reached at kmara@ip-watch.ch.

------------------------------------------------------------

Thiru Balasubramaniam
Geneva Representative
Knowledge Ecology International (KEI)
thiru@keionline.org

Tel: +41 22 791 6727
Mobile: +41 76 508 0997