By Jomo Kwame Sundaram
ROME, Dec 11 2015 (IPS)

The latest estimates are that over two billion people in the world suffer some micronutrient deficiencies, often referred to as “hidden hunger.” The main sustainable solution is to ensure adequate public health interventions, including clean water, sanitation and hygiene as well as healthy, diverse diets for all.

Jomo Kwame Sundaram. Credit: FAO

In the short term, however, it will be necessary to provide supplements of vitamins, minerals and trace elements to those especially vulnerable, e.g. due to displacement and emergency situations. There is a general consensus that such needs of pregnant and lactating mothers should be especially prioritized due to the intergenerational consequences of child stunting for such reasons.

Developing countries should be able to affordably access locally produced or imported generics of the vitamin and mineral supplements they require. Many current options associated with public-private partnership will instead strengthen the vested interests of the lucrative, large and fast-growing industry for nutrition supplements.

The need for supplementation to address urgent, short-term micronutrient deficiencies should qualify as part of the public health exception to the Trade-Related Aspects of Intellectual Property Rights (TRIPs) rules of the World Trade Organization (WTO). This has not been fully recognized ostensibly because people do not drop dead immediately due to “hidden hunger.”

TRIPS and generics production for developing countries

Under the TRIPS agreement, intellectual property rights (IPRs) — for copyright, trademark, geographical indication, industrial designs and patents — are extended to all signatory countries. Patents, most relevant to public health and access to medicines, give twenty years of protection to inventions.

In the current language, there are no explicit provisions for generic production of patented nutrition supplements. However, there is supposed to be a great deal of flexibility on the basis of public health needs, which could be extended to minerals and vitamins for supplementation.

The TRIPS Agreement provides space for countries taking measures to protect public health. Under Article 31, countries can issue compulsory licenses allowing firms or individuals to produce generic copies of patented products or processes for the domestic market without the owner’s consent in “case of a national emergency or other circumstances of extreme urgency or in cases of public non-commercial use.” The government can also determine adequate payment to the IPR holder.

At the Doha WTO conference in 2001 launching the Doha Development Round of trade negotiations, the Declaration on the TRIPS Agreement and Public Health affirmed the right of countries to protect public health, enable access to medicines, and determine the criteria for issuing a compulsory license. It emphasized that each country “has the right to grant compulsory licenses” and “the right to determine what constitutes a national health emergency or other circumstances of extreme urgency.”

This new text corrected the false impression that some health emergency was needed to justify compulsory licensing. It also spelt out that “public health crises, including those relating to HIV/AIDS, tuberculosis, malaria and other epidemics, can represent a national emergency or other circumstances of extreme urgency.”

Technology transfer

Under Article 66.2 of TRIPS, developed country governments are obliged to actively promote technology transfer in establishing manufacturing capabilities for patented processes in developing countries. The 2001 Declaration also reaffirmed the developed countries’ commitment to provide incentives to their corporations to enable technology transfer to the least developed countries. This was part of the original bargain for developing countries to provide protection of IPRs.

Developing countries also have the right to import generics if they lack manufacturing capabilities. A 2003 waiver allows countries unable to domestically produce pharmaceuticals to import them instead. Hence, under compulsory licensing, such countries can import externally produced patented drugs. Thus, while compulsory licensing allows countries to import cheaper generics from countries already producing them, to take advantage of TRIPS Agreement flexibility, countries need to legislate accordingly.

However, exemptions to pharmaceutical patent protection to the least developed countries, enabling them to import without issuing a compulsory license, were only extended until 2016. The upcoming Nairobi WTO ministerial should extend this exemption beyond next year.

While there appears to be legal space under TRIPS for developing countries to use compulsory licensing, they have effectively be prevented from doing this by complicated rules and procedural requirements. Consequently, use of compulsory licensing by developing countries has been largely limited to HIV/AIDS medicines, and almost exclusively used by middle-income countries. LDCs have not issued any compulsory licenses while the total number of applications has declined significantly in the last decade.

Needed actions

Existing TRIPS texts do not preclude compulsory licensing for local generic production in developing countries. However, extension of the right to use compulsory licensing and other such flexibilities to vitamin and mineral supplements is not explicit. While explicit permission is given to AIDs, malaria, tuberculosis and epidemics, even this is rarely used.

In light of the foregoing, the following revisions to WTO provisions to protect developing countries’ right to produce generic vitamin and mineral supplements should be introduced. This will also be in line with the July 2015 Addis Ababa Action Agenda’s commitment to facilitate technology transfer:

• Developing appropriate model legislation to facilitate development of the national legislation needed for compulsory licensing, etc.
• Provide free legal services to developing country governments interested in accessing TRIPS facilities.
• Identify and investigate relevant national vitamin and mineral supplement production needs in partnership with other governments to enable developed countries to meet their technology transfer obligations.

Developing countries need to act to overcome three major constraints to issuing compulsory licenses and bypassing patent legislation for public health. First, the governments must be strong enough to withstand business and political pressures. Second, it is necessary to have enabling legislation in place. Third, these countries need to have production capacity and distribution arrangements in place.
Also, the UN system should offer appropriate technical expertise to advance progress.

(End)

Excerpt:

President Rafael Correa Delgado of Ecuador does not mince words when it comes to development. ”Neoliberal policies based on so-called competitiveness, efficiency and the labour flexibility framework have helped the empire of capital to prosper at the cost of human labour,” he told a crowded auditorium at the 15th Raul Prebitsch Lecture.

The Raul Prebitsch Lectures, which are named after the first Secretary-General of the U.N. Conference on Trade and Development (UNCTAD) when it was set up in 1964, allow prominent personalities to speak to a wide audience on burning trade and development topics.

This year, President Correa took the floor on Oct. 24 with a lecture on ‘Ecuador: Development as a Political Process’, which covered efforts by his country to build a model of equitable and sustainable development, “Neoliberal policies based on so-called competitiveness, efficiency and the labour flexibility framework have helped the empire of capital to prosper at the cost of human labour” – President Rafael Correa Delgado of Ecuador

Development, he told his audience, “is a political process and not a technical equation that can be solved with capital” and he offered a developmental paradigm that seeks to build on “people-oriented” socio-economic and cultural policies to improve the welfare of millions of poor people instead of catering to the “elites of the empire of capital”.

Proposing a “new regional financial architecture”, he said that “the time has come to pool our resources for establishing a bank and a reserve fund for South American countries to pursue people-oriented developmental policies in our region” and reverse the “elite-based”, “capital-dominated”, “neoliberal” economic order that has wrought havoc over the past three decades.

“We need to reverse the dollarisation of our economies and stop the transfer of our wealth to finance Treasury bills in the United States,” Correa said. “South American economies have transferred over 800 billion dollars to the United States for sustaining U.S. Treasury bills and this is unacceptable.”

According to Correa, people-centric policies in the fields of education, health and employment in Ecuador have improved the country’s Human Development Index (HDI) since 2007. The HDI is published annually by the U.N. Development Programme (UNDP) is a composite statistic of life expectancy, education and income indices used to rank countries into tiers of human development.

Ecuador’s HDI value for 2012 is 0.724 – in the high human development tier – positioning the country at 89 out of 187 countries and territories, according to UNDP’s Human Development Report (HDR) for 2013.

Explaining his country’s achievement, Correa said that public investments involving the creation of roads, bridges, power grids, telecommunications, water works, educational institutions, hospitals and judiciary have all helped the private sector to reap benefits from overall development.

“At a time when Hooverian depression policies based on austerity measures are continuing to impoverish people while the banks which created the world’s worst economic crisis in 2008 are reaping benefits because of the rule of capital,  Ecuador has successfully overcome many hurdles because of its people-oriented policies,”  he said.

Correa argued that by investing public funds in education, which is the “cornerstone of democracy”, particularly in higher education or the “Socrates of education”, including special education projects for indigenous and Afro-Ecuadorian people, it has been shown that society can put an end to capital-dominated policies.

“We need to change international power relations to overcome neocolonial dependency,” Correa told the diplomats present at the lecture.  “Globalisation is the quest for global consumers and it does not serve global citizens.”

The Ecuadorian president argued that developing countries have secured a raw deal from the current international trading system which has helped the industrialised nations to pursue imbalanced policies while selectively maintaining barriers.

He urged developing countries to implement autonomous industrialisation strategies, just as the United States had done over two centuries ago.

Developing countries, he said, must pursue ”protectionist policies as the United States had implemented under the leadership of Alexander Hamilton [U.S Secretary of the Treasury under first president George Washington] when it closed its economy to imports from the United Kingdom.”

Citing the research findings of Cambridge-based economist Ha-Joon Chang in his book ‘Bad Samaritans:  The Myth of Free Trade and the Secret History of Capitalism’, Correa said that protectionist policies are essential for the development of developing countries.

He stressed that developing countries, which are at a comparable of stage of economic development as the United States was in Hamilton’s time, must devise policies that would push their economies into the global economic order.

The strategy of “import-substitution-industrialisation [ISI]” and nascent industry development is needed for developing countries, he said. “However, the developing countries must ensure proper implementation of ISI strategies because governments had committed mistakes in the past while implementing these policies.”

“Free trade and unfettered trade,” continued Correa, is a “fallacy” based on the Washington Consensus and neoliberal economic policies. In fact, while the United States and other countries preach free trade, they have continued to impose barriers on exports from developing countries.

Turning to the global intellectual property rights regime, which he said is not helpful for the development of all countries, Correa said that these rights must serve the greater public good, suggesting that the current rules do not allow equitable development in the sharing of genetic resources, for example.

In this context, he said that governments must not allow faceless international arbitrators to issue rulings that would severely undermine their “sovereignty” in disputes launched by transnational corporations.

President Correa also called for the free movement of labour on a par with capital. “While capital can move without any controls and cause huge volatility and damage to the international economy, movement of labour is criminalised. This is unacceptable and it is absurd that the movement of labour is met with punitive measures while governments have to welcome capital without any barriers.”

He was also severe in his criticism of the financialisation of the global economy which cannot be subjected to the Tobin tax. “Nobel Laureate James Tobin had proposed a tax on financial transactions in 1981 to curb the volatile movement of currencies but it was never implemented because of the power of the financial industry,” he argued.

Concluding with a hint that his government’s social and economic policies are paving the way for the creation of a healthy society, Correa quipped: “The Pope is an Argentinian, God may be a Brazilian, but ‘Paradise’ is in Ecuador.”

(Edited by Phil Harris)

Rose growers in Bangalore, India, rely on sustainable rainwater harvesting techniques. Credit: Keya Acharya/IPS

By Keya Acharya
Jul 18 2014 (IPS)

Excerpt:

The proposed Trans-Pacific Partnership (TPP) agreement covers 12 Pacific Rim countries that collectively account for about 40 percent of the world economy. Credit: Amantha Perera/IPS

By Richard Heydarian
MANILA, Jun 14 2014 (IPS)

Amid simmering territorial conflicts across the Western Pacific, specifically between China and its neighbours in the South and East China Seas, coupled with China rising to the rank of top trading partner with Japan, South Korea, Australia and the Association of Southeast Asian Nations (ASEAN), the Obama administration has been hard-pressed to re-assert its strategic footprint in the region.

Since 2009, Obama has turned Washington’s strategic focus towards the Asia-Pacific region, which has gradually emerged as the global center of gravity in both economic and geopolitical terms.

The “Pivot to Asia” (P2A) policy, formally announced in late-2011, represents Washington’s renewed attempt to tap into booming markets of Asia and check China’s rising territorial assertiveness in the East and South China Seas.

The P2A policy contained both trade as well as security pillars, designed to maintain the U.S.’ strategic primacy in Asia and aid its post-recession economic recovery. The cornerstone of the Obama administration’s economic policy in Asia is the proposed Trans-Pacific Partnership (TPP) agreement, which excludes China and covers 12 Pacific Rim countries that collectively account for about 40 percent of the world economy.

In security terms, the Obama administration has sought to deepen the U.S. military footprint across Asia by exploring new basing agreements and gradually redeploying 20 percent of its naval assets from the Atlantic to the Pacific theatre.

Obama’s latest trip to Asia, however, underlined the inability of Washington to balance its economic and geopolitical initiatives in the region. While Obama managed to strike new strategic agreements with leading Southeast Asian countries, namely Malaysia and the Philippines, and strengthen bilateral military alliances with Japan and South Korea, there was, in turn, no concrete development vis-à-vis the ongoing TPP negotiations.

“I’ve been very clear and honest that American manufacturers and farmers need to have meaningful access to markets that are included under TPP, including here in Japan,” said Obama during his trip to Tokyo, hoping to encourage Japan to make necessary concessions in the TPP negotiations.

“That’s what will make it a good deal for America — for our workers and our consumers, and our families. That’s my bottom line, and I can’t accept anything less.”

As the world’s third largest economy, with a GDP of six trillion dollars, Japan is central to the conclusion of the TPP negotiations, which missed its late-2013 deadline and has struggled to gain momentum in recent negotiation rounds. But Japanese Prime Minister Shinzo Abe only promised to “energetically and earnestly continue the talks.”

The disagreements were initially over Japan’s trade barriers on agricultural imports; but the U.S. has increasingly focused on Japanese restrictions on the imports of beef and pork and the opening of Japanese automobile market to American manufacturers.

Amid rising territorial tensions in Asia, Obama went the extra mile to reassure Japan of Washington’s full military commitment if a war were to erupt between Tokyo and Beijing over the disputed Senkaku/Diaoyu Islands in the East China Sea.

In Malaysia, Obama oversaw the formalisation of a bilateral “comprehensive partnership” agreement, which marked the end of decades of frosty relations. Above all, Obama’s visit to the Philippines coincided with the signing of a new security pact, the Enhanced Defense Cooperation Agreement (EDCA), which grants the U.S. military 10 years of access to the Philippines’ top five military bases, namely the three former U.S. bases of Clark airfield, Subic bay, and Poro Point as well as Camp Aguinaldo and Fort Magsaysay in Metro Manila.

On the TPP front, however, Obama faces tremendous opposition at home and across Asia. Long shrouded in secrecy, a growing number of businesses, concerned citizens, and civil society organisations have come to oppose what they see as a lopsided free trading agreement (FTA), which grants multinational companies (MNCs) extensive control over public services such as healthcare and internet.

Among developing countries in East Asia, particularly Malaysia and Vietnam, there is a growing fear over the potential impact of the TPP on the production and importation of cheap, generic drugs, with global pharmaceuticals poised to more vigorously protect their Intellectual Property Rights (IPR), which have contributed to the exorbitant costs of conventional drugs across the wold.

In the industrialised world, especially the U.S., many labour unions and big businesses are worried over the proposed reduction of strategic protectionist barriers, especially in the automobile manufacturing sectors, allowing export-driven countries such as Japan to displace domestic manufacturers.

Japan, for instance, has insisted on retaining high tariff barriers on its agricultural sector, while Vietnam has resisted the proposed privatisation of state-owned textile companies.

The late-2013 revelation of the draconian IPR provisions of the TPP by the anti-secrecy group Wikileaks dealt a huge blow to the ongoing negotiations, further strengthening opposition to the proposed trading regime.

Among the most worrying provisions are proposals that allow MNCs to sue sovereign governments in international courts and override domestic laws on both trade and non-trade matters; relaxation of environmental regulations; greater policing and monitoring of internet; and restrictions on access to public services due to more strict investment rules in utilities and strategic sectors of the economy.

Fearful of domestic backlash, Asian countries such as Japan and Malaysia have hardened their negotiating positions, more explicitly demanding trade concessions from the U.S. In fact, leaked documents reflect the growing isolation of the U.S. within the ongoing negotiations, with Obama struggling to gain enough support within his own party over the proposed Fast-Track Trade bill to expedite the trade negotiations with limited legislative scrutiny.

“Japan’s aim is geopolitical in the first instance, i.e., contain China. I doubt if the leadership has really thought [the TPP] through economically,” Walden Bello, a leading expert on trade issues and co-founder of the organisation Focus on the Global South, told IPS, underscoring how the TPP lacks any compelling economic rationale and is “doomed to fail.”

“Once [Japanese] corporations encounter the same old hard-nosed demands of the U.S. for structural reform…the Japanese government will hem and haw, as it did with the APEC free trade area in the 1990’s.”

Meanwhile, an economically-ascendant Beijing has managed to progressively eclipse Washington in trade and investment terms, with China pushing for an alternative Free Trade Area of the Asia-Pacific (FTAAP), which is increasingly seen as a more viable and inclusive alternative to the TPP.

“China does not even have to initiate a counter-bloc. It just needs to sit quietly and see the TPP fall apart,” said Walden Bello, dismissing the TPP as an ineffectual attempt to counter growing Chinese economic influence in Asia “The benefits of trade accruing to corporations…with what will soon become the world’s biggest economy [China] will undermine the US’s geo-economic objective.”

Aside from being the top trading partner of almost all countries in East Asia, China has emerged as a major source of development aid and soft loans in recent years, contributing as much as 671.1 billion dollars in the 2001-2011 period.

Given China’s continued economic expansion, the country is expected to accelerate its development assistance to neighbouring countries. China is already establishing a 50-billion-dollar Asian Infrastructure Investment Bank, which is poised to directly compete with the Japan-dominated Asian Development Bank (ADB).

Overall, the poor prospects of the TPP underline the U.S.’ weakening economic influence in Asia, with the Obama administration primarily occupied with strengthening Washington’s military footprint in the Pacific waters to hedge against a rising China.

(END)

Drought has dramatically increased as a consequence of climate change. Most countries react to it only after it has occurred, but don’t have national policies to prevent it. The high-level meeting on national drought policies in Geneva this week is trying to match scientific knowledge with political awareness.

“Drought is a natural phenomenon, but over the last decades, as a consequence of climate change, it has been escalating in frequency and intensity, affecting millions of people across the world,” Loc Gnacadja, executive secretary of the UN Convention to Combat Desertification (UNCC), said at the meeting.

The meeting, jointly organised by UNCC, the Food and Agricultural Organisation (FAO) and the World Meteorological Organisation (WMO), brings together scientists and government officials to “start a dialogue on national policies,” said Michel Jarraud, secretary general of the WMO. “We have to facilitate the transition from crisis management to catastrophes prevention, like it has been successfully done for tsunamis and other natural catastrophes.”

Drought affects more people than any other natural disaster: since 1900 more than 11 million people have died as a consequence of drought, and over two billion people have been affected. In Africa, a third of the people already live in drought-affected areas.

Half of the world population will live in areas of high water scarcity by 2020. And drought is the single most common cause of food shortages, severely affecting food security in developing countries and jeopardising the FAO’s effort to increase food production by 70 percent by 2050 in order to feed a world population of 9 billion.

“Last year, the U.S. was hit by a severe drought that cost 1 percent of GDP,” Ann Tutwiler, special representative of the FAO in Geneva told IPS in an interview. “It affected the livestock that had to be sent earlier to the slaughterhouse. Damages could be somehow limited since U.S. biofuel policies allow, in cases of emergency, to use the cereals to feed the cattle instead of fuelling the cars. But it did not have much impact of human beings, except for the increase in the prices of cereals.”

In the Horn of Africa, drought affected 13 million people in 2011. In the worst-affected regions of Somalia, cereal prices were up 260 percent and, in Kenya, wheat yields dropped 45 percent compared to the year before.

In the 2007-2008 drought in Syria, 75 percent of the country’s farmers suffered total crop failure. The drought in Northern Mexico between 2010 and 2011 destroyed 900,000 hectares of farmland, and 1.7 million head of livestock were lost.

“The only country in the world that has a full-fledged drought policy is Australia,” Mohamed Bazza, senior official at the land and water division at FAO told IPS. “Kiribati and Morocco have national policies on water that are first steps towards good drought policies, but they are still sectorial and not comprehensive. Water is not the only sector that needs to be well planned, but all sectors do, like agriculture. Or, the strategy exists, but it is not implemented.”

Tackling drought has been at the centre of the FAO’s mandate since its establishment. The Rome-based UN agency has implemented projects in emergency responses, but also in mitigation and preparedness, like establishment of regional drought management networks.

“We were able to work in specific countries and regions where challenges are recognised, but we cannot work in countries that don’t ask us to,” Tutwiler told IPS. “The purpose of this conference is to raise awareness at the political level. Not enough countries are able to organise interdisciplinary responses to drought, and in many areas it is much easier to respond to emergencies than to longer-term issues. And from the side of donor agencies, prevention and response to drought are often not well coordinated.”

On the financial side, Mohamed Bazza believes that countries can fit their policies in their own regular budgets, like the ones for agriculture. “Drought policy is country specific and it should accommodate economic and social conditions. Of course, the more funding you have, the better; but you don’t need to have extra funding to start. It is not the costs that prevent countries to have proactive policies. It is the lack of political awareness.”

According to Tutwiler, the private sector has a special role to play in preventing drought, for example by developing new irrigation technologies or systems, by providing training for farmers in production techniques that can mitigate drought, or in identifying drought tolerant crops.

What about the NGOs who maintain that there are enough traditional drought resilient seeds, that ecological agriculture is the best response to climate change, and there is no need to develop new varieties of seeds whose control will be in the hand of a couple of multinationals through patents?

“It is important that this issue of intellectual property has been addressed by NGOs because there is much more sensitivity to it now, and the international community is trying to find solutions,” Tutwiler said.

“A lot of lessons have been learned from organic agriculture that can be applied more broadly. But given the challenges of climate change, we cannot a priori rule out a particular technology. A single one will not be right for all countries. Whether you use traditional seeds or commercial ones, you must make sure that they are adapted to the local conditions and wont’ affect the environment.

“There is more and more integration of local knowledge with more sophisticated techniques that will help getting the local varieties that are found to be drought resilient, into a wider use.”

She added that the International Treaty on Plant Genetic Resources for Food and Agriculture allows for flexibilities for smallholder farmers to be reimbursed if some of their traditional seeds are commercialised.

Is a gene more like a tree trunk or more like a baseball bat? A federal court Thursday took a stand on the question, ruling that isolated DNA molecules are “not found in nature”, and are therefore more like inventions, such as baseball bats, than natural phenomenon, such as tree trunks.

Structure of the BRCA1 protein. Credit: emw/creative commons

Using language steeped in metaphor in a packed U.S. federal courtroom, attorneys in July debated the question in a closely-watched case on the right to patent genes that has been working its way through the courts.

At stake: the right of one company – Myriad Genetics – to patent a gene as a human invention under U.S. patent law, which allows patents on inventions but not on products of nature.

In a ruling that largely upheld the status quo in a biotech industry that has been patenting genes for decades, the U.S. Court of Appeals for the Federal Circuit ruled Thursday that “isolated” human genes are patentable. Methods of “comparing” or “analysing” DNA sequences are, however, not patent eligible, it ruled.

In a two-to-one decision, the court affirmed Myriad’s right to claim intellectual property rights on the BRCA-1 BRCA-2 genes, genes where mutations indicate a woman has an 82 percent increased risk of developing breast cancer.

The company’s patents on the genes are the basis of a breast cancer indicator test that has been a profitable asset in the company’s portfolio of intellectual property.

The American Civil Liberties Union (ACLU), representing a group of about 20 plaintiffs, including the breast cancer patient advocates and geneticists, several years ago launched a legal challenge to Myriad’s right to patent the genes.

The plaintiffs, including patient advocacy group Breast Cancer Action, have argued that Myriad’s IP rights to the genes allow it to block others from testing for – or even looking at – the BRCA-1 and BRCA-2 genes, a right they say Myriad has exercised in the past with legal threats.

Plaintiffs have also argued the patents raise prices for testing and essentially create a market monopoly which blocks the poorest from getting tested and stifles scientists who want to look at the genes. Yale geneticist Ellen Matloff, a plaintiff in the case, told IPS last year the situation was “horrifying.”

Matloff told IPS that 95 percent of patients she recommended for Myriad’s 700-dollar supplementary BART test, which looks for mutations on the BRCA-1 and BRCA-2 genes, opted not to get it because of its high cost.

Furthermore, those who question gene patents have pointed out that patenting individual genes might even be myopic, especially in a world of whole genome sequencing where the scientific community is increasingly interested in gene interactions, the influence of the environment on genetics (called epigenetics), and other big-picture indicators to understand patient health.

The case has been working its way through the courts. A New York district court judge sided with the ACLU in 2010, but the Federal Circuit Court of Appeals overturned the ruling in July 2011.

The ACLU appealed to the Supreme Court last year, but the Court declined to issue a ruling in the case. Instead, it sent the case back to the Federal Circuit to re-examine in light of its unanimous spring decision that Prometheus Laboratories Inc. did not have a right to patent a certain blood test because the patent was based on observations about natural phenomena.

But Thursday, the Federal Circuit again ruled that genes are patentable. The court wrote, “The isolated DNA molecules before us are not found in nature. They are obtained in the laboratory and are man-made, the product of human ingenuity.”

In its majority opinion the court also highlighted that gene patenting had been standard practice for the U.S. Patent and Trademark Office (PTO) for years.

“Why hasn’t this come up in 30 years,” Circuit Judge Kimberly Moore, who sided with the majority, asked during oral arguments in the courtroom July.

Moore hinted at the biotech sector’s financial stake in gene patents, often key components of diagnostic test IP at the centre of a much-hyped personalised medicine industry. “What about the biotech sector and all the money?” Moore asked.

In his dissenting opinion, Circuit Judge William Bryson wrote, “my colleagues assign significant weight to the fact that since 2001 the PTO has had guidelines in place that have allowed patents on entire human genes… I think the PTO’s practice and guidelines are not entitled to significant weight…”

Sandra Park, an attorney with the ACLU, told IPS her team was disappointed in the Federal Circuit court’s decision, which she said she believed did not take the Supreme Court’s ruling in Prometheus adequately into consideration.

“We think that the Supreme Court’s recent decision is very clear that the Court is very concerned about how patents interfere with scientific work,” Park told IPS. “The Supreme Court has said that the interests of industry in relying on patent protection is not a factor in determining that something is patentable.”

Park said the mere fact that Prometheus argued that it needed its patents to advance its interests, in the Supreme Court’s ruling, was insufficient reason to justify patents.

If the ACLU decides, with the other plaintiffs, to appeal the Federal Circuit court’s decision, it is possible the Supreme Court might decide to hear the case. Such a scenario is not unheard of. In fact, Park said, the Supreme Court decision to overturn Prometheus’s right to its diagnostic patent came after the Federal Circuit twice upheld it.

Park said the ACLU was still deciding its next step. “We are reviewing our options, but we haven’t made any decisions yet.”

By Emilio Godoy
MEXICO CITY, Jul 18 2012 (IPS)

Mexican advocates of internet freedom are mobilising to protest their government’s decision to sign the Anti-Counterfeiting Trade Agreement (ACTA), a multilateral treaty whose stated aim is to protect intellectual property right through enhanced international cooperation and enforcement.

These activists will pressure president-elect Enrique Peña, who is scheduled to take office on Dec. 1, and the new senate due to be inaugurated on Sep. 1, to reject ratification of the treaty, which, they say, has provisions that threaten user privacy, freedom of expression, and universal internet access.

On Wednesday, Jul. 11, the outgoing conservative government of Felipe Calderón announced unexpectedly that the Mexican Institute of Industrial Property had signed the ACTA.

Negotiations for the treaty began in 2006 and signatories so far include Australia, Canada, the European Union, Japan, Morocco, New Zealand, Singapore, South Korea, Switzerland and the United States.

“We’re going to demand that the senate vote against ratifying (ACTA) as it is an attempt to control the internet,” Irene Levy, president of Mexican Telecommunications Observatory, a non-governmental organisation (NGO), told IPS.

“And we’re also going to insist that the input of artistes and authors be heard in  drafting a national initiative to reform intellectual property laws to protect their legitimate rights,” she added.

ACTA has also met with strong resistance outside Mexico. On Jul. 4, the European Parliament rejected it on the grounds that it violated fundamental rights. An overwhelming 478 legislators rejected it while 39 were in favour, and 165 abstained.

The treaty seeks to establish an international legal framework for targeting counterfeit goods, generic drugs and copyright infringement online. If it comes into force it would create a new intergovernmental body parallel to the World Trade Organisation, the World Intellectual Property Organisation and the United Nations.

The scope of ACTA covers intellectual property, copyright, trademarks, geographical indications or denominations of origin, industrial designs, patents, layout-designs of integrated circuits, protection of undisclosed information and trade secrets.

The treaty includes surveillance measures to control the movement of information across borders, and imposes obligations on internet service providers to filter and censor data shared over the internet.

“We need to resume the debate on this issue, focusing on an agenda that includes all the stakeholders involved, to create a legal framework that protects everyone and not just the industries that hold a cultural monopoly,” Antonio Martínez, head of communications of the Mexican chapter of Artículo 19, an NGO that promotes freedom of expression, told IPS.

The Mexican government ignored the input from the discussions of the Plural Working Group for Monitoring ACTA Negotiations, which engaged senators, business representatives, academics and civil society organisations.

Mexico’s senate had already rejected the treaty in June 2011 because it violated national laws and contravened regulations in force. It could also affect internet access, thus widening the digital divide, and be used to censure online content.

Earlier, in November 2010, the Federal Telecommunications Commission had warned that ACTA could hold back internet growth, threaten user privacy and slow down progress on the digital agenda.

By now signing on ACTA, Calderón is forcing the newly-elected executive and legislative branches to resume debate on the relevance of the treaty.

According to the Mexican Internet Association, there are more than 30 million internet users in this Latin American country of 112 million people.

Representatives of the music, film and software industries have been calling for Mexico to toughen regulations to protect their products.

The Business Software Alliance estimates that software piracy is a business worth some 1.25 billion dollars.

In the fourth survey of Pirated and Counterfeit Goods Consumption, published in 2011 by the U.S. Chamber of Commerce in Mexico (American Chamber/Mexico), eight out of every 10 respondents admitted to buying counterfeit goods.

Piracy and sale of counterfeit products are already considered offences under the criminal code, as is unauthorised access to computer systems and equipment.

The industry’s views have permeated forums such as the International Telecommunication Union (ITU), which is debating future political and technical standards for the internet.

Even if ACTA is not ultimately ratified in Mexico, its content could filter into other conventions and treaties under consideration such as the Trans Pacific Strategic Economic Partnership Agreement (TPP), signed in 2005 by Chile, Singapore, Brunei and New Zealand. Current negotiations for an expanded version include Australia, Canada, Malaysia, Mexico, Peru, the U.S. and Vietnam.

“There’s no doubt in my mind that the U.S. will try to implement this any way it can, dressing it up in other mechanisms, whether the TPP or the ITU. So we can’t fall for the false argument that it’s only about copyright protection, when it’s an issue that affects the freedom of the internet,” Levy said.

The tenth round of negotiations of the TPP were held Jul. 2-10 in the U.S. city of San Diego.

On intellectual property, the TPP proposes legal incentives for internet service providers who hinder the storage or free sharing of protected content, and who identify users of copyright-infringing websites. It would also grant economic compensation for complainants affected by such practices.

In addition, it provides for the establishment of sanctions for commercial and non-commercial infringement of intellectual rights, the creation of a legal surveillance scheme and the introduction of patent rules to protect surgical procedures or medicines derived from biological processes, such as vaccines.

“These same sectors operate in different fronts with the same intention of controlling the distribution of tangible and intangible goods, which should be treated separately,” Martínez said.

Foggy details surrounding Europe’s anti-counterfeiting trade agreement (ACTA) have divided pubic opinion, with activists on one end of the spectrum claiming it to be the end of Internet freedom and the generic drug market, while proponents continue to defend the act as a “modest” agreement to protect Europe’s intellectual property.

Such polar opposite opinions shed light on the essential controversy surrounding the ACTA: the lack of detail in the text leaves broad room for interpretation.

The importance of protecting European Union intellectual property is acknowledged by a broad sector of civil society but whether or not the ACTA is the answer remains to be seen, especially given concerns over how the agreement was negotiated and how it will be enforced.

Currently, the draft text is in the hands of the European Court of Justice, which will rule whether or not the agreement is aligned with the rights and freedoms ensured to EU citizens via various treaty standards.

Controversy over the ACTA has unfolded with much drama, including masked protestors taking to the streets in cities all across the continent, culminating in a week’s worth of meetings and forums at the European Parliament during the week of Feb. 27.

When the ACTA’s rapporteur, French parliament member Kader Arif, threw his support behind protestors in late January, it sent a very clear message about the ambiguity of the agreement.

Arif resigned with bold claims that he no longer wished to be part of the “masquerade” of the ACTA, adding that he had encountered political manoeuvres designed to rush the agreement through without due consultation of civil society and limited transparency.

The legislation, he said, would not be effective in its intended purpose of tracking those who profit from counterfeiting, and instead open the door to a host of violations of individual freedoms.

Still, the legislation pushed on.

Karel De Gucht, the EU’s commissioner for trade, said turning the ACTA to the European Court of Justice was a necessary step in order to quell rumors and enter a period of informed debate over the agreement.

De Gucht stressed that the ACTA was designed to protect intellectual property, calling it Europe’s ‘main raw material’.

“The ACTA will change nothing about how we use the Internet and social websites today – since it does not introduce any new rules. The ACTA only helps to enforce what is already law today,” De Gucht said.

But a French citizen online advocacy group, La Quadrature du Net, insists De Gucht is lying to parliament members and downplaying the ACTA’s far-reaching effects.

“By pretending that ACTA is inoffensive, Commissioner De Gucht is trying to hide the European Commission’s immense responsibility in initiating a negotiation process circumventing democratic arenas,” Philippe Aigrain, co-founder of La Quadrature du Net said.

Implications for generic drugs

Amnesty International is urging the EU to reject the ACTA, lamenting that it would infringe upon generic drug distribution by allowing officials to seize drugs with labels similar to trademarked brands.

Similar labels are used in order to communicate medical equivalence, according to Amnesty, and are an integral component in maintaining faith in the generic drug trade.

Scottish parliament member David Martin voiced his concern over the future of generic drugs as well. Though patents themselves are not included in the text, the ACTA leaves room for border patrols in any given country to mistake generic drugs for counterfeit drugs and seize them, which has happened in the past, Martin said.

De Gucht countered this argument by pointing to the very real threat of the distribution of counterfeit drugs; he said that more than 10 percent of generic drugs are counterfeited, placing people in acute danger of consuming drugs with harmful ingredients.

Widney Brown, the senior director of international law and policy at Amnesty International, called the ACTA a “Pandora’s box of potential human rights violations,” with additional mention of concerns over privacy, freedom of information, and freedom of expression.

Besides NGOs, active citizens have taken a firm stance against the ACTA. On Feb. 28, the European Parliament received a petition representing more than 2.4 million people opposed to the agreement.

Sponsored by Avaaz, an online organisation that works to connect civil society with the political decision-making process, the petition called for Parliament to reject ratification of the ACTA, effectively killing the agreement.

“This is not 1984”

In an address to the European Parliament’s committee for international trade, De Gucht stressed that much of the opposition to the ACTA was unfounded, based on false assumptions about the ACTA and an exaggeration of its harmful effects.

“This is not 1984; this is 2012. The ACTA is not about ‘Big Brother’, it is about solving our economic problems in 2012 and beyond. And in 2012 we have real economic problems that we must take action to solve. The ACTA is part of the solution,” De Gucht said.

But the agreement’s current rapporteur isn’t ready to express similar support. Martin, who calls himself the “accidental” rapporteur, appointed after Arif’s resignation, has labeled himself the ideal man for the job, as his indecision over the agreement allows him to view the whole situation with clarity.

Shadow rapporteur Christofer Fjellner also has hesitations about the public’s response to the ACTA, saying that at least “50 percent” of protests against the ACTA are “myths” while the other 50 percent are legitimate concerns worth examining.

Fjellner pointed specifically to a commonly held fear of unwarranted searches of personal devices, such as computers and MP3 players, which he refuted as “ungrounded”.

Though the Avaaz petition labeled the ACTA the “new threat to the net,” the agreement has actually been on the table since 2007.

Formal negotiations were launched in June 2008, and went through 11 rounds of negotiations before being finalised in November 2010. The EU and 22 member states signed the ACTA on Jan. 26 in Tokyo; but in order to take effect the agreement must be universally ratified by all member states and approved by Parliament.

So far, Germany, the Netherlands, Estonia, Slovakia, and Cyprus have withheld support for the pact.

Countries that have pledged support include the United States, Canada, South Korea, Japan, Australia, New Zealand, and Singapore.

Michael Geist, a law professor at the University of Ottawa, spoke at an ACTA workshop on Mar. 1, where he argued that open discussions about the ACTA should have taken place years ago, at the conception of the agreement, instead of at a juncture where Parliament only has the power to approve or reject it altogether.

Uncertainties have been enough to halt the decision making process for now. Neither the European Court of Justice nor the European Parliament has been given a deadline, and the process could be stalled for a year or more.

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