"Today's decision on the implementation of paragraph 6 of the Doha Declaration on TRIPS and Public Health puts the WTO into unchartered waters. The WTO secretariat, the TRIPS Council and the Chair of the TRIPS council will now begin to routinely review the issuance of individual licenses, and the WTO will now as a matter of expected practice, oversee the use of compulsory licensing in the most intimate terms, looking at the terms of individual licenses, evaluating the basis for deciding manufacturing capacity is insufficient, or reviewing or second guessing any of the new terms and obligations that the new implementation language introduces into the regulation of compulsory licensing of patents on medicines. The persons who have negotiated this agreement have given the world a new model for explicitly endorsing protectionism. The United States, Europe, Canada, Australia, Japan and other developed economies will be allowed to bar imports from developing country generic suppliers -- under completely irrational protectionist measures that are defended by the WTO Secretariat and its most powerful members as a humanitarian gesture.

"The European Commission's DG-Trade has engineered this agreement as an attack on a position endorsed by its own parliament that was a far more elegant and rational solution to the export issue. The EU Parliament Amendment 196 was 52 words. The new WTO deal is more than 3,200 words. The extra 3,150 words were not needed and will create a morass of uncertainty and gamesmanship. The new deal will predictably be used to prejudice other more useful export strategies under Articles 30 or 31.k of the TRIPS agreement.

"The new agreement has very modest benefits, and it has very substantial costs, risks and uncertainties.

"On the positive side, the new agreement completely rejects the efforts of the US, Japan, the European Union and the WTO Secretariat to limit the scope of diseases for compulsory licensing, and it also does not require high standards such as epidemics or emergencies. Routine public health problems can be addressed in the new agreement. The developing countries did hold the line on this, under enormous pressure from major pharmaceutical companies and the trade delegates who lobby on behalf of the biggest pharmaceutical companies.

"The next step for public health activists will be to be more pro-active on trade and public health, both locally and globally. Locally it is now time for countries to give effect to paragraph 4 of the Doha Declaration, and actually issue compulsory licenses to promote access to medicine for all. If it can be said at the WTO, it can be done back home. Globally, it is now time for NGOs to take greater control of the global debate over how best to fund R&D. On the hand, we have scenarios of ever increasing shares of GDP being spent to support a largely non-innovative big pharma system of extremely costly marketing efforts, and a growing police state designed to stop the trade in inexpensive medicines. On the other hand, there are new ideas on how trade agreements should more efficiently address global support for R&D, and new ideas on how to best fund innovation for new medical products. We think the latter agenda is better for everyone."

James Love
Consumer Project on Technology
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