WTO Chair Calls Weekend Meeting to Gauge Prospects for Agreement on TRIPs/Medicines

Bureau of National Affairs - WTO Reporter
Daniel Pruzin
December 6, 2002

GENEVA--Members of the World Trade Organization will hold a special meeting Dec. 8 in an effort to resolve differences regarding a proposed agreement which would give developing countries greater flexibility under WTO rules to override patent rights and import generic equivalents of essential medicines.

Eduardo Perez Motta, the Mexican ambassador chairing the WTO's TRIPs Council, told journalists Dec. 5 that he planned to hold the open-ended meeting on Sunday in order to determine whether there was any movement in the positions of governments that would bring members closer to an agreement.

Perez Motta admitted he has not seen any new proposals for breaking the deadlock in the negotiations since they were suspended on Nov. 29 and that he had no plans at this stage to revise a draft legal text circulated Nov. 24 that has served as the basis for the negotiations.

He added that he expected delegations to show more flexibility in their positions at the Sunday meeting following consultations with their capitals.

The Mexican ambassador suspended the negotiations after a week of contentious talks which saw increasing gaps between the positions of developed and developing country members on how to make provisions under the WTO's Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs) more flexible so that poor countries could issue compulsory license for the import of generic medicines.

Under TRIPs rules as they now stand, members may resort to compulsory licensing to override patent rights only if it is used "predominantly" for the supply of the patented good on the domestic market of the member authorizing such use. Developing countries complain they are unable to utilize these provisions to tackle major health crises such as the HIV/AIDS epidemic and produce low-cost generic medicines because they lack the domestic manufacturing capacity to produce the medicines.

As a result, WTO members adopted a declaration at their ministerial conference in Doha, Qatar, last year calling on governments to find an expeditious solution to this problem by the end of 2002.

Draft Drew Fire

Perez Motta issued an initial draft Nov. 10 outlining possible elements of an agreement which would allow poor countries without sufficient manufacturing to issue compulsory licenses for the import of low-cost medicines. Key WTO members meeting at a "mini-ministerial" in Sydney, Australia, Nov. 15 agreed that the text would serve as the basis for further negotiations.

But the subsequent Nov. 29 draft putting the elements in the form of a legal text sparked bitter debates over issues such as which types of products and diseases the new compulsory licensing provisions would apply to, the countries eligible to issue such licenses, the safeguards that should be put into place to ensure that the generic medicines go to those in need and are not illegally diverted to developed country markets, and what legal mechanism should be used to incorporate the new provisions into the WTO rules.

One particularly contentious point is the scope of disease coverage. The United States and Switzerland, home to a number of the world's largest research-based pharmaceutical firms, insist that compulsory licenses should only be used for tackling "infectious epidemics" of the same gravity as HIV/AIDS, tuberculosis, and malaria, three diseases specifically mentioned in the Doha declaration. But developing countries argue that the TRIPS/medicines agreement should reflect the language in the Doha declaration, which refers to "public health problems" afflicting many developing countries, "especially those resulting from HIV/AIDS, tuberculosis, malaria and other epidemics."

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