Pascal Lamy
EU Trade Commissioner
Rue de la Loi 170
1040 Brussels

January 14th 2003

Dear Mr Lamy,

We are writing in response to your proposal for a list of diseases to be covered by the WTO agreement on paragraph six of the Doha declaration on TRIPS and public health. We welcome your efforts to break the current deadlock in negotiations, but cannot endorse your proposal. Any text that restricts the agreement to a set list of diseases - even involving the World Health Organization in assessing public health concerns - constitutes an unacceptable attempt to restrict developing countries' use of compulsory licensing. The scope of diseases was already extensively discussed in Doha, and the consensus text included in the Doha declaration rejects any limitations.

We believe it is profoundly unfair that, while the US and the EU can decide when to issue a compulsory license, they are seeking to restrict developing countries' right to do the same. Why should wealthy countries be able to determine what constitutes a public health problem for themselves, while developing countries have to go to the WHO to do so?

There is increased urgency to find a solution. TRIPS implementation deadlines for some important manufacturing countries are quickly approaching - unless something is done, the sources of affordable generic medicines will dry up. Chairman Motta's 16th December text, upon which you base your proposal, was viewed by most delegations as a compromise that was far from ideal because it failed the test of being simple, workable and economically viable. This break in negotiations is a good opportunity to rework the text from the beginning, rather than base future drafts on the Motta proposal.

The solution to paragraph six should be fully based on the Doha declaration, therefore not limit the scope of diseases. Developing countries have the right to determine what constitutes a public health problem in their own territories, just as developed countries can. The agreement must not force countries to negotiate disease by disease and drug by drug, and should not require onerous conditions or unnecessary notification procedures. A real solution to the production for export issue must be workable, automatic and economically viable.

We welcome your recognition of WHO's role in these WTO negotiations. MSF supports the 17th September WHO proposal which recommended a solution based on article 30 of the TRIPS Agreement. Under this article, WTO members may override patent rights to permit generic production and export of a patented product if it is needed to address the health needs of a third country. Unless the product is not under patent there, the importing country must first issue a compulsory license. This solution was also preferred by NGOs and a number of developing countries.

The European Commission should support a broader discussion on how the TRIPS agreement affects the availability of affordable generic medicines and measures countries can take to protect public health from the effects of stronger patent protection at the next World Health Assembly in May. This discussion should include alternative strategies to tackle the lack of R&D for neglected diseases.

We ask you to show the sincerity of your efforts to protect public health in developing countries by denouncing any attempt to restrict developing countries' ability to decide for themselves what constitutes a public health problem, and to determine which diseases warrant waiving intellectual property rights.

If a just and workable solution is not found, poor countries will not have the same ability to use compulsory licenses as wealthy countries - and in the end, patients in developing countries will pay the price, in many cases with their own lives.

Yours sincerely,

Ellen 't Hoen,
Campaign for Access to Essential Medicines,
Médecins Sans Frontières