TRADE-AMERICAS: US Takes Hardline on Drug Patents

By Gustavo Capdevila Reprint | | Print |

Gustavo Capdevila

GENEVA, Apr 3 2001 (IPS) - The United States-sponsored proposal on pharmaceutical patents for inclusion in the treaty to govern the Free Trade Area of the Americas (FTAA) contains demands that the world’s highest international health authorities have advised against adopting.

The US initiative, to be debated at the FTAA ministerial meeting later this week in Buenos Aires, is a serious matter because it is an attempt to impose standards much higher than the ones currently in place, commented Argentine expert Carlos Correa.

The international debate on pharmaceutical patents has heated up in recent months as a result of the legal actions launched by the United States against Brazil, and 39 transnational laboratories against South Africa.

The demands, brought before the World Trade Organisation (WTO) and South African courts, respectively, attempt to establish absolute protection of private intellectual property involved in medical inventions.

The controversy, with the active participation of civil society groups from around the world, is centred on the much- questioned WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).

Correa pointed out that the cases of South Africa and Brazil, alongside news about the sales policies of some pharmaceutical firms, have revealed to the international public the problems generated when the TRIPS accord is applied.

The World Health Organisation (WHO) has described TRIPS as an agreement establishing intellectual property norms for all WTO members, but which are ’historically based on the standards of wealthier countries.”

’Since the public health impact of TRIPS requirements have yet to be fully assessed, WHO recommends that developing countries be cautious about enacting legislation that is more stringent,” such as the requirements set by what is known as ’TRIPS-plus.”

The US proposal for inclusion in the FTAA, a trade bloc to cover the area extending from Alaska to Tierra del Fuego, ’is clearly TRIPS- plus,” warned Correa, a professor at the University of Buenos Aires and adviser to several developing countries on matters related to intellectual property.

Many Latin American and Asian countries, acting under bilateral pressures from industrialised countries, have already made concessions by adopting the TRIPS-plus framework, he said.

The ministers of trade and of economy in the Americas, excluding Cuba, are to gather this Thursday in the Argentine capital to negotiate the outline for the FTAA initiative, which will then be presented before the heads of state at the Summit of the Americas in Quebec City, Canada, beginning April 20.

Among the working groups at the ministerial meeting, one will be dedicated to the matter of liberalising trade that involves intellectual property rights.

The United States hopes to extend patent life beyond the 20-year TRIPS minimum, supposedly to compensate for the time delays in approving product registration, Correa explained.

The US intent also represents a case of TRIPS-plus because it calls for exclusive rights in handling data presented for registering pharmaceutical and agro-chemical products, which would generate a monopoly situation even without the existence of a patent.

The proposal establishes stronger rights for the patent holders, including those governing imports and drastically limits compulsory licensing in ways that go far beyond the TRIPS requirements.

The WTO agreement establishes some exceptions to the exclusive rights on patents and authorises governments to grant compulsory licences for the manufacturing of medicines in the case of a national emergency or other grave circumstances.

Governments of developing countries and civil society groups have asserted that the HIV/AIDS pandemic as a serious emergency that justifies the granting of compulsory licenses to ensure the supply of low-cost medications to poor people who are ill.

Correa, however, commented that the FTAA discussions of matters covered by the TRIPS agreement should not lead to an increase in severity of the existing standards.

The South American countries that belong to Mercosur (Southern Common Market û Argentina, Brazil, Paraguay and Uruguay) are to negotiate under a joint strategy, affirmed the Argentine expert, who participated in Geneva in the consultations between his and the US government on patent legislation in Argentina.