Notes on Geneva negotiations on paragraph 6
(How the WTO plans to get its bad reputation back)

James Love (+41 79 569 6022)
November 26, 2002


As one might expect from past history, the USA is playing the role of bad cop on many issues in the current Doha para 6 negotiations, particularly on the issue of the scope of diseases and the countries that can benefit. The US wants to limit the scope of the "solution" to only a few words taken out of context in a single paragraph on the Doha Declaration, which actualy changes the meaning of the Declaration text. One only needs to read the various PhRMA letters and the letter from Rosa Whitaker to see what is going on here. For the US, its favorite Doha text is last part of paragraph 1, which says: "especially those resulting from HIV/AIDS, tuberculosis, malaria and other epidemics." Least favorite Doha text is from paragraph 4, which reads:

"the Agreement can and should be interpreted and implemented in a manner supportive of WTO Members' right to protect public health and, in particular, to promote access to medicines for all."
Major US goal in negotiations is to make paragraph 4 more or less disappear. The US is also leading the divide and conquer effort, with massive pressure (particularly back home) on developing countries to fall in line, and this is having a huge effect on African, and several Asian and Latin american countries. Some developing countries also seem to have been persuaded by the US story that the more it is impossible to import from India, China or Brazil, the better for their own domestic industry, which of course shows zero appreciation for how one would actually build up a domestic industry. In the USA, the big PhRMA fire power is coming from the White House, and US negotiators have almost no real freedom at this point.


Pascal Lamy and Paul Vandoren have pushed for a set of highly regulatory and restrictive "safeguards" on exports, which include for example, requirements on the packaging of generic products, notification to patent owners and the WTO, and a series of obligations to control diversion. Among other things, a government that authorizes exports must notify the TRIPS council itself for each authorization, including the terms of each license. This is an astonishing expansion of the WTO role in micromanaging the patent license, reaching down to every individual license, and creates an expectation that patent owners themselves will have discussions with the TRIPS council if the various conditions, limitations and burdens are not sufficiently addressed.

Note here that there is zero evidence that *generic* products have been diverted in any significant way to the EU market. (Problems have been for branded products under patent). DG-Trade is facing a domestic rebellion, as the French President, the Beligium Parliament and the EU parliment have endorsed the NGO position on the use of a simple Article 30 approach. Remarkably, developing countries have not made any points on Lamy's lack of domestic support for the DG-Trade efforts to protect GSK and other EU firms, nor has there been any discussion of the language of the EU Parliament Amendment 196, which is a radically different approach. The EU also gets some special bad cop credit for not explaining that it plans to solve its own 31.f problem by creating a "community patent" that will legalize cross border compulsoy licensing in Europe, a "solution" that will be highly restricted for developing countries in the Nov 24 text.


Japan gets a prize for demanding that vaccines be excluded from the solution, on the grounds that vaccines technically aren't pharmaceutical products. Vaccines were eliminated from the November 24 draft of the "solution."

Canada and Australia

Canada and Australia get honorable mention for helping the big guys beat up on the little guys. Canada gets special bad cop credit for somehow keepings its own Article 30 export provisions secret from most negotiators, and at one point actually denying that such a proceeding or provision existed. In the Canada case, Canada won the right to non-volentary export of products for foreign registrations of generic products, without notice to patent owners, and without any safeguards in foreign markets, on the grounds that patent owners can hire lawyers in export markets to protect their interests, and with the understanding the medicines are regulated and patent owners will generally know when an infringing product shows up in the market. But I guess this "solution" is only available for the US, Canada and the EU (under proposed changes in the EU medicines directive).

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