IP Community Watches While UN Considers Access To Medicine

May 9, 2016 (Mimesis Law) — The United Nations Secretary-General Ban Ki-moon has been convening a High-Level Panel on Access to Medicines since November last year. The proposed objective of the High-Level Panel is “to review and assess proposals and recommend solutions for remedying the policy incoherence between the justifiable rights of inventors, international human rights law, trade rules and public health in the context of health technologies.”

The High-Level Panel is comprised of individuals from diverse stakeholder groups acting in their individual capacities. According to the timeline, several meetings of High-Level Panel and two public hearings have been convened so far and the final report that is expected to include any recommendations will be finalized and presented by the High-Level Panel to the Secretary-General next month. The Secretary-General will make the report available to the General Assembly and undertake further action as appropriate.

This High-Level Panel has received a lot of attention from the pharmaceutical industry, particularly with respect to intellectual property. Most importantly, access to medicines is intimately associated with patents. It’s not too much to say that this is a symbol of North-South issue at the UN and other international arenas. Developing countries insist that patents impede access to medicines for those who cannot afford them, by contributing to a rise in the price of medicines. On the contrary, developed countries with sufficient medicine manufacturing capabilities believe that patents can play crucial roles in fostering innovation on medicines, by giving pharma companies a competitive edge in the market in return for their huge investment on new drug development.

Such divergent views have been reflected in the history of discussions at WTO, in the form of “TRIPS flexibilities”. In a nutshell, “TRIPS flexibilities” means exceptional circumstances where other objectives can take precedence over intellectual property protection and enforcement. In accordance with Articles 7 and of 8 of TRIPS agreement, such flexibilities serve a variety of objectives, including the protection of public health and nutrition, the promotion of competition and curbing the monopolistic potential of patent rights, and the encouragement of technology transfer and dissemination of knowledge.

In 2001, seven years after the conclusion of TRIPS agreement in 1994, the notion of flexibilities was elaborated in relation to public health. “The Declaration on the TRIPS Agreement and Public Health” at WTO Doha Ministerial Conference in 2001 became a key milestone regarding a close relation between patents and access to medicines. Paragraph 4 of the Declaration reads as follows:

We agree that the TRIPS Agreement does not and should not prevent members from taking measures to protect public health. Accordingly, while reiterating our commitment to the TRIPS Agreement, we affirm that 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. In this connection, we reaffirm the right of WTO members to use, to the full, the provisions in the TRIPS Agreement, which provide flexibility for this purpose.

Since the Doha Declaration in 2001, various measures have been taken to put the Declaration into effect, including the amendment of the TRIPS Agreement. Nevertheless, developing countries are continue to be unhappy with them. They may need more “inflexible” flexibilities to TRIPS. For instance, a patent should not be granted for medicines, a royalty-free license should be granted for medical patents, and so on.

Now let’s get back on topic. What kind of recommendations will be presented by the High-Level Panel? Will it be in favor of developing countries? Or will it be nothing new under the UN?

I look forward to reading the report which will be issued in June and delving deeper into it.

Roy Song is writing under pseudonym and works for an unidentified government and Intellectual Property Office.