Consumer Project on Technology comments on the draft Common Working Paper of the EC, Hungary, Japan, Korea, Switzerland and Turkey to the Seattle Ministerial Declaration, as it relates to the TRIPS agreement and access to drugs.

The Consumer Project on Technology (http://www.cptech.org) is a non profit organization created by Ralph Nader that has worked on trade disputes involving health care for several years, including disputes involving access to medicines in South Africa, Thailand, Pakistan, India, many other countries. CPT has extensive information about these disputes on the web at http://www.cptech.org/ip/health.

CPT, like other consumer and public groups such as MSF, Health Action International and Consumers International, welcomes the effort by the EC, Hungary, Japan, Korea, Switzerland and Turkey in a draft working paper to raise the issue of compulsory licensing of patents for essential medicines. Unfortunately, in its present formulation, the language could be interpreted to significantly reduce the scope of compulsory licensing, and should be changed or eliminated.

The current EC/H/J/K/S/T draft proposal on TRIPS and access to medicines reads:

The TRIPS Agreement, and in particular Article 31, shall be understood to permit developing countries to issue, in accordance with the provisions laid down in this article and other relevant articles, compulsory licenses for drugs appearing on the list of essential drugs of the World Health Organization.

Right now all countries clearly have the authority to use compulsory licensing for all patents in all fields of technology. The WHO list of essential drugs only has a handful of patented drugs on its list, including no drugs for the treatment of HIV infected persons (the only HIV drug on the WHO essential drugs list is AZT, and only for the prevention of mother to child transmission of HIV, not to treat persons already infected).

The EC/H/J/K/S/T draft proposal is political statement, not a change in the TRIPS, but it would be a mistake to adopt it in its present form. We agree with MSF and HAI that the statement could be fixed, by changing the language as follows:

The TRIPS Agreement, and in particular Article 31, shall be understood to permit developing countries to issue, in accordance with the provisions laid down in this article and other relevant articles, compulsory licenses for drugs, including those appearing on the list of essential drugs of the World Health Organization.

An alternative wording would be:

The TRIPS Agreement, and in particular Article 31, shall be understood to permit developing countries to issue, in accordance with the provisions laid down in this article and other relevant articles, compulsory licenses to improve access to medicines.

Even better would be:

The TRIPS Agreement, and in particular Article 31, shall be understood to permit developing countries to issue, in accordance with the provisions laid down in this article and other relevant articles, compulsory licenses to improve access to medicines. Article 27.1 of the TRIPS regarding the obligation to extend patents to all fields of technology should not be understood to prevent a country from providing special provisions in patent law to provide access to medicines. Article 30 of the TRIPS should be understood to permit producers of pharmaceuticals to export drugs to developing countries that have issued a TRIPS consistent compulsory license, thereby enabling countries that have small domestic markets to benefit from compulsory licensing to obtain access to medicines for HIV/AIDS and other public health problems.