Ms Jayashree Watal
Paris, May 15, 2003
Dear Jayashree,
We are writing in respect of a matter arising from paragraph 7 of the Doha
Declaration on TRIPS and Public Health. We would much appreciate a response
to be provided by the WTO Secretariat.
Paragraph 7 of the Doha Declaration on TRIPS and Public Health (adopted 14
November 2001) reads as follows (with added italics):
Notwithstanding the fact that they have granted and continue to grant
patents for pharmaceutical products, we think that the italicised portion
of the Decision means that LDCs are under no international (WTO/TRIPS)
obligation to enforce the pharmaceutical patents that they have already
granted. This view would appear to be supported by comments in the WIPO
Draft Industrial Property Act, prepared by the Secretariat of WIPO, a
portion of which is reproduced as an appendix to this letter.
On this basis, should a patent holder bring an action for infringement of a
pharmaceutical patent in an LDC we think that, as far as obligations under
the WTO and the TRIPS Agreement are concerned, the courts (or other
relevant bodies) of the LDC may decline to enforce that patent.
Presumably, subject to the necessary national constitutional
considerations, some LDCs may treat the italicised portion of the Decision
as having direct effect while others will need to take the appropriate
action (including for example a national declaration that pharmaceutical
patents are not to be enforced) for the provision to have national effect?
We would much appreciate it if the WTO Secretariat could confirm our view
that the italicised portions of paragraph 7 of the Doha Declaration on
TRIPS and Public Health and the TRIPS Council Decision of 27 June 2002 are
to be interpreted as suggested above.
We look forward to your response,
With best wishes,
Ellen't Hoen
Counsellor
Intellectual Property Division
World Trade Organization
Rue de Lausanne 154
CH - 1211 Geneva 21
Switzerland
7. We reaffirm the commitment of developed-country members to provide
incentives to their enterprises and institutions to promote and encourage
technology transfer to least-developed country members pursuant to Article
66.2. We also agree that the least-developed country members will not be
obliged, with respect to pharmaceutical products, to implement or apply
Sections 5 and 7 of Part II of the TRIPS Agreement or to enforce rights
provided for under these Sections until 1 January 2016, without prejudice
to the right of least-developed country members to seek other extensions of
the transition periods as provided for in Article 66.1 of the TRIPS
Agreement. We instruct the Council for TRIPS to take the necessary action
to give effect to this pursuant to Article 66.1 of the TRIPS Agreement.
The 27 June 2002 meeting of the TRIPS Council agreed a Decision to give
effect to the above paragraph, in the following terms (with added italics):
It is not clear at the present time that any LDCs have taken advantage of
the opportunity to remove pharmaceutical products from patentability till
2016. Many LDCs have continued their previous practice of granting patents
for pharmaceutical products.
Campaign For Access to Essential Medicines
Médecins sans Frontières
Tel 33 1 4021 2836
Fax 33 1 4021 2962
E-mail ellen.t.hoen@paris.msf.org
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