Note on Peculiar WTO response to MSF Question on LDCs

Ellen 't Hoen
June, 2003


On May 15th we sent the letter copied below to the WTO in which we ask the WTO to confirm our interpretation of paragraph 7 of the Doha declaration that LDCs are under no obligation to enforce pharmaceutical product patents that are already granted.

The WTO circulated our letter to the WTO Members together with a draft response from the secretariat. However the answer that was sent to MSF was different from the draft response and only says the following.

"Thank you for your letter of 15 May 2003 regarding paragraph 7 of the Doha Declaration on the TRIPS Agreement and Public Health.

I am afraid that all that I can say is that the WTO Secretariat does not have the authority to interpret WTO legal instruments. Only the Ministerial Conference and the General Council have the authority to do this. I am sorry not to be more helpful in regard to the issue you raised"

Certain Members apparently stopped the WTO secretariat from sending MSF a full response.

This raises a number of questions:

  1. How committed are Members to implementing the Doha declaration on TRIPS and Public Health if they actively prevent the WTO to send a response regarding a vital question for LDCs?
  2. How can the WTO engage in technical assistance and support to countries in implementation of the Doha Declaration if the secretariat is not even allowed to respond to a key question regarding least developing countries options?

As soon as I have the full draft response from the WTO I will be happy to share this with ip-health readers.

- Ellen 't Hoen

P.S. Our letter mentions that LDCs so far have not used the par 7. This is no longer true. For example Cambodia which is in the process of becoming a WTO Member, has included in it's patent law the following article 136:

"The pharmaceutical products mentioned in the Article 4 of this Law shall be excluded from patent protection until January 01, 2016, according to the Declaration on Agreement on Trade-Related Aspects of Intellectual Property Rights and Public Health of the Ministerial Conference of World Trade Organization dated November 14, 2001 in Doha of Qatar."


Ms Jayashree Watal
Counsellor
Intellectual Property Division
World Trade Organization
Rue de Lausanne 154
CH - 1211 Geneva 21
Switzerland

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):

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):

  1. 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.

  2. This decision is made without prejudice to the right of least-developed country Members to seek other extensions of the period provided for in paragraph 1 of Article 66 of the TRIPS Agreement.

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.

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
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


DRAFT INDUSTRIAL PROPERTY ACT FOR [COUNTRY] AND COMMENTARY ON ITS MAIN PROVISIONS prepared by the Secretariat of WIPO

1 (3) The following, even if they are inventions within the meaning of subsection (2), shall be excluded from patent protection:

[?]

(viii) [pharmaceutical products, until January 1, 2016.]

Subsection (3)(viii):This provision may be adopted by Least Developed Countries (LDCs) and is based on paragraph 7 of the Declaration on the TRIPS Agreement and Public Health (doc. ref. WT/MIN(01)/DEC/W/2), issued at the World Trade Organization (WTO) Ministerial Conference which was held in Doha from November 9 to 14, 2001. Paragraph 7 of the said Declaration provides that least-developed country Members of the WTO will not be obliged, with respect to pharmaceutical products, to implement or apply Sections 5 (Patents) and 7 (Protection of Undisclosed Information) of Part II of the TRIPS Agreement or to enforce rights provided for under those Sections until 1 January 2016, without prejudice to the right of those Members to seek other extensions of the transition periods as provided for in Article 66.1 of the said Agreement. The TRIPS Council, was requested in the said Declaration, to take the necessary action to give effect to this decision pursuant to Article 66.1 of the TRIPS Agreement. In accordance with the said request, the TRIPS Council, during its session on June 27, 2002, approved a decision to extend until January 1, 2016, the transition period during which LDCs are not 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 those Sections without prejudice to the right of those Members to seek other extensions of the transition periods as provided for in Article 66.1 of the said Agreement. The TRIPS Council also approved a waiver to exempt LDCs from having to provide exclusive marketing rights for pharmaceutical products in the period during which they do not provide patent protection for such products. The waiver was submitted to, and approved by, the WTO General Council on July 8, 2002. LDCs which adopt this provision may need to introduce transitional provisions for patents granted in respect of pharmaceutical products under any previous or current legislation. It should also be noted, in this context, that Section 66.1 of the TRIPS Agreement provides that least-developed country Members of the WTO are not required to implement the TRIPS Agreement until January 1, 2006. As such, and in light of Paragraph 7 of the said Declaration, and the said decision of the TRIPS Council, an LDC is not obliged, under the TRIPS Agreement, to enforce patents granted in respect of pharmaceutical products under any previous or current legislation.


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