Tussle over flexibility of TRIPS at Doha

By C. Rammanohar Reddy

DOHA, NOV. 12. As negotiators at the ministerial conference of the World Trade Organisation struggle to reach an agreement on a future work programme, one area where there has been a considerable amount of movement back and forth is on a political declaration that is expected to demonstrate how much flexibility the developing countries can read into the provisions of the 1994 GATT agreement on drug patents. On Tuesday evening, negotiators said they were close to an agreement on a final package.

The controversial agreement on trade-related aspects of intellectual rights (TRIPS) will not be re-written, countries will still have to provide strict patent protection and Indian companies after 2005 will not be able to freely produce patented drugs. But an alliance between developing country Governments and international groups working on public health has forced the developed countries to consider a declaration that asserts that notwithstanding the TRIPS agreement, Governments have the right to override patents and licence production from generic drug companies. Over the past few days negotiators have been trying to finalise the declaration. The statement would enable the world's poorest countries to access inexpensive medicines which are under patent from Indian firms, while others such as Brazil would have the freedom to use compulsory licences to produce patented drugs at low cost for their health programmes. ``We are not talking about disregarding IPRs, but of using suitable instruments to check the abuse of patent monopoly in a crucial area like health,'' said Mr. Jose Serra, Brazil's articulate Health Minister, who is here to argue his country's case.

With the global public mood turning against pharmaceutical firms for the high prices they charge for patented drugs, the U.S., Switzerland, Germany and the U.K. - home to the world's biggest drug companies - are willing to consider a ministerial statement that asserts the freedom of Governments to issue compulsory licences. But the sticking point is proving to be the conditions under which Governments can override patents. Anxious to see that the tide does not turn too much against intellectual property rights, the developed countries would like this flexibility to be limited to public health crises such as the HIV/AIDS pandemic, while Brazil, India, the sub-Saharan Africa countries and the NGOs have been demanding that the demands of any health situation, not necessarily an emergency, should permit the overriding of patents by production of generic variants. At the heart of the debate is innocuously sounding text that states: ``Nothing in the TRIPS agreement shall prevent members from taking measures to protect public health''. Many see this as a test of the developed countries' commitment to demonstrating the true extent of flexibility in TRIPS. ``The draft has already watered down the language demanded by the developing countries, if it is going to be weakened further by giving paramount importance to the rights of patent holders it would be a mockery of the professed sensitivity of the developed countries to the health concerns of the poor countries,'' said Ms. Ellen t' Hoen of Medicins Sans Frontieres, the Nobel Prize winning organisation that has been one of the NGOs campaigning on this issue.

But the content of the preamble of the political declaration is not the only issue involved. For Mr. James Love of the Washington-based CPT, another group active in the area, it is as important for the TRIPS declaration to enable poor countries with small markets or low technological capability to be able to buy drugs that are under patent from low-cost producers in third countries like India. Without such an explicit provision it will not be possible for many of the world's poorest countries, with small markets or low technological capability, to take advantage of any stated flexibility in the TRIPS agreement.

The U.S., on its part, has proposed a 10-year extension, up to 2006, of the transition period for the least developed countries to introduce product patents. It has also suggested a moratorium on disputes involving the LDCs and possible violation of the TRIPS agreement.

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