Geneva Negotiations on Paragraph Six Update

December 11, 2002

The "bad cop, bad copy" scenario has not changed.

Scope of diseases

The United States and the Swiss are pushing the restrictive language on the scope of diseases. The United States now claims it made a "mistake" in Doha that needs to be fixed, and they insist that diseases such as diabetes, cancer and asthma be excluded from the paragraph 6 solution, and effectively, that the whole Doha Declaration be understood to be the narrowed to the diseases that PhRMA is willing bend on. The "carrot" for the Africa group is to allow a regional market for Africa, which will be a tiny fraction of the EU market (after the Eu adopts a community patent) and even smaller relative to the US market. If the Africa trade negotiators spend any time talking to their own generics companies (they have several generics firm all over Africa, but few are politically active), they would find that Africa generics firms(a) need to import some components of finished products and (b) aspire to export beyond the very limited Africa market, if they ever want to become a significant global industry. (For one letter from an African generic company, see: The EU is letting the US take the lead on the scope of diseases, and does not complain that this is a demand to renege on the Doha deal.


The EU is taking the lead on the restrictive safeguards, none of which will apply in its own market once the community patent is in effect, and none of which now apply to CL's issued in the EU or other OECD countries, for example to those licenses issued under 31.k, where global exports are permitted with no safeguards. And of course, none of those safeguards now apply to any country early working "bolar" exceptions, research or experimental use exports, US and Canadian exports under their export friendly bolar provisions, to the EU parliament version of its Medicines Directive, to various US and EU prior user right Article 30 exceptions, or to any number of things done in the North. And, this is all quite TRIPS plus plus in terms the obligations on countries, but particularly in the role of the WTO in actually reviewing individual licenses.

Paragraph 7 now disappearing?

Apparently as an extra Christmas gift the EU bad cops are now trying to erode paragraph 7 as well. Apparently they regret all of that decolonization stuff in the last century.


The developing country delegates make a very big mistake in Doha paragraph 6, tying things to "manufacturing capacity" and this is haunting the negotiations. Since the relevant issue is the size of the domestic market and economies of scale, the US and the EU can insist on criteria to disqualify on the capacity grounds. So just being able to do things more efficiently isn't good enough, which makes it clear why this isn't about comparative advantage, efficiency or gains from trade, those putative rationles for calling this a "free trade" agreement.

Legal Mechanism

There are several issues here, but basically one is how permanent will be the solution, or put another way, how frequently can the US and Eu make developing countries buy the deal. The para 6 negotitation in the second time, and the US and EU have in various ways sought more opportunities to squeeze the south on the same issue. The second issue is having multiple legal proceedings and licenses required, which double the opportunity for bilaterial pressure, which is now on the upswing from the USA after a few years of moderation. Note to African delegates. After seeing what the US is doing to your trade ministers in your capitols, why agree to a "solution" that allows them to work this on both the exporting and importing side? Do you think anyone but PhRMA benefits from this?

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