[Ip-health] Rethinking compulsory licensing for export: WTO members hold informal consultations on Paragraph 6 implementation

[thiru@keionline.org]

http://keionline.org/node/782

Rethinking compulsory licensing for export: WTO members hold informal
consultations on Paragraph 6 implementation
By thiru
Created 12 Feb 2010 - 7:59am

Friday, 12 February 2010

Around 100 Members of the World Trade Organization attended informal
consultations today in Room E (a mainstay of the green room consultations)
to discuss the implementation of Paragraph 6 mechanism [1]which was
created to be an "an expeditious solution" for "WTO members with
insufficient or no manufacturing capacities in the pharmaceutical sector"
that faced difficulties in in "making effective use of compulsory
licensing under the TRIPS Agreement".

The impetus for this informal consultation, held from 10 AM to 12 PM
Geneva time, arose out of demands by the African Group, Brazil, Ecuador,
India, the Least-Developed Country Group and Pakistan (please see
informative piece by IP-Watch: WTO Members To Consider Review Of TRIPS
Public Health Amendment [2]) at a TRIPS Council meeting held in October
27-28, 2009 in Geneva for a review of the Paragraph 6 mechanism. At the
TRIPS Council in October, the demandeurs for the review noted they did not
pre-judge the effectiveness of the Paragraph 6 mechanism. Perhaps the
glaring sub-text to this request for a review is that the the one time use
of the Paragraph 6 mechanism to ship ARVs from Canada to Rwanda has not
inspired much confidence in the viability of the system. At the TRIPS
Council meeting in October 2009, the United States (represented by Tanuje
Garde [3], Director for Intellectual Property Rights and Innovation,
Office of the US Trade Representative) did not join with consensus and
refused the request by the African Group, the LDC Group, Brazil, Ecuador,
India, Pakistan and other developing countries, to hold a review of the
Paragraph 6 system. To the best of your blogger's knowledge, the US did
not specifically say why the Obama Administration opposed a review. The
recent IP-Watch piece (11 February 2010) [2] noted that the "United States
argued that the limited use of the system indicated countries with no
domestic manufacturing capacity were getting access to medicines via aid".
It would appear that the signal USTR conveyed at the TRIPS Council last
year was that WTO members' concerns regarding the Paragraph 6 system were
unfounded as PEPFAR and other aid initiatives would save the day.

At today's green room, Room E was filled to capacity demonstrating the
importance countries accorded to the challenges of implementation of
Paragraph 6. These informal consultations dwelt upon ascertaining why the
Paragraph 6 system has only been used once. Switzerland noted that the
Paragraph 6 was not designed to be a panacea to cure all ills ailing
public health. Canada decried NGO reports of the Canadian experience in
using the system as long and onerous; the Canadian delegate produced a
chronological account meant to disabuse Members of the notion that
Canada's experience was difficult.

India requested the WTO secretariat to organize a workshop to examine the
implementation of the Paragraph 6 decision open to Members and civil
society organizations. This was seconded by Nigeria (representing the
African Group) and supported by China Brazil and Venezuela. The United
States (represented by Acting Head of Mission to the WTO, David Shark) [4]
objected to the inclusion of NGOs at this workshop.

A formal meeting of the TRIPS Council (2 March to 3 March, 2010) looms
ahead; it is expected that the Chair of the TRIPS Council will produce a
report of today's informal consultation to the March meeting. Although
today's informal was originally intended as a one-off, sources close to
the negotiations indicate that the large turnout today provides room for
more open-ended, informal consultations to examine the implementation of
the Paragraph 6 system. One wonders if these consultations, in concert
with the TRIPS Council workshop, could precipitate a fundamental
re-examination of trade rules that affect access to medicines.

Source URL: http://keionline.org/node/782

Links:
[1] http://www.wto.org/english/theWTO_e/minist_e/min01_e/mindecl_trips_e.htm
[2]http://www.ip-watch.org/weblog/2010/02/11/wto-members-to-consider-review-of-trips-public-health-amendment/
[3] http://www.miplc.de/academics/garde/
[4]http://www.ustr.gov/about-us/biographies-key-officials/david-shark-deputy-chief-mission-geneva