How Low Can You Go?
Notes from Tuesday (26 Nov) negotiations on paragraph 6

Jamie Love, 41.79.569.6022
November 27, 2002

There appeared to be little progress on a "solution" to paragraph 6 on Tuesday, but still new text. The two new things circulated were a proposal the United States is pushing very hard now to exclude OECD countries as beneficiaries on the import side. It is a footnote to paragraph 1(b) of the November 24 text, that says:

"It is noted that developed country members not in transition have stated their intention not to use the system established under this Decision as importing country members and that some other Members have stated their intention to use the system only in circumstances of extreme national emergency (WT/GC/m...)."

NO EXCEPTIONS, EVEN FOR BIOTERRORISM OR ABUSES OF PATENT RIGHTS

The US proposal would made it impossible for the United States, Europe, Japan, Australia, Canada, New Zealand, Korea and other OECD member to import products. This is quite extraordinary when one considers that the Doha Declaration itself was influenced heavily by the US and Canadian decisions on Ciprofloxcin, during the Anthrax scare, which *could* have been more serious, in a situation where the US was about to import from India, and the lack of stockpiles in the United States led to unequal access to Cipro, and Capitol hill mail room workers died while high government officials were given the drug. The US proposal would override the effectiveness too of HR 3235 from the last Congress, The Public Health Emergency Medicines Act.

A few other cases that deserve mention are the Korean proceedings on Glivec, where the threat of a compulsory license is based upon an imports from India, and the case in New Zealand where BMS allowed the entire national supply of ddI to run out in a dispute over the price the government would reimburse, to mention only a few relevant cases.

ONLY DISEASES THAT TRAVEL

We also heard that the US tried to limit the scope of disease to only infectious diseases, meaning I suppose that only diseases that might travel and infect US citizens would be covered, a particularly offensive formulation of the "wrong disease" strategy to limit the scope of compulsory licensing.

PROTECTIONIST APPROACH

To all of this, one needs to be clear how explicitly protectionist this is. If the US, Japan or Europe issues a compulsory license, under this system they are forced to grant the license to a domestic firm, and they cannot allow an Indian, Chinese, South African, Malaysian, Thai or Mexican supplier to provide the drug. It is hard to see how this promotes technology transfer or economic development in the developing world. At what point do trade officials put to rest "free trade" rhetoric.

TEMPORARY SOLUTION

Then there was the discussion over an amendment to paragraph 11, which concerns the legal mechanism, and quite a bit of work on US proposal to make the "solution" as temporary and subject to review or termination as possible. So basically, the negotiations are moving in the wrong direction, reflecting it seems that the US, EU, Japan, Swiss, Australia and Canada are sensing that some delegates want a symbolic achievement so bad, they will settle for almost nothing of substance, or even something that represents a big setback from where things were last year in Doha, and which prejudices the existing text.

One Latin American delegate predicted flatly that no one would ever use the "system" being created. There was a discussion with an African delegate over the lack of information to most delegates over Article 30 approaches, including a lack of information on the recent European Parliament adoption of Amendment 196, and the nature of the Canadian "bolar" decision that authorized exports for pre- expiration of patent generic drug registration purposes, without safeguards, without limitations on diseases, without notice to patent owners, and without compensation to patent owners (also the EU Amendment 196 approach). The African delegate was asked if it would be possible to ask the WHO or the WTO secretariat to provide the delegates with information on both approaches. The response was, "I can't, the US would kill me." Apparently the WTO secretariat feels the same way.

But apparently some delegates don't take their cues from the US delegation, and there was some new discussion about an Article 30 approach, which was encouraging.

Jamie +41 79 569 6022