US advises developing country FTA partners not to follow WHO IP plan

Intellectual Property Watch (Geneva) | 11 December 2006

US Advises Developing Country FTA Partners Not To Follow WHO IP Plan

By Tove Iren S. Gerhardsen

The United States has busily negotiated bilateral free trade agreements with a variety of developing countries in recent years, and now appears to be using these to influence those countries’ positions in multilateral bodies such as the World Health Organization (WHO).

Developing countries that have free trade agreements (FTAs) with the United States received an email in the form of a “démarche” from the US government before the 4-8 December meeting of the WHO Intergovernmental Working Group on Public Health, Innovation and Intellectual Property Rights. The demarche said that it had become apparent that the WHO was trying to go beyond its competency and address intellectual property rights and trade, which could have impact on the scope and effect of FTAs, according to a government source.

This, the email said, and the proposed global framework described in World Health Assembly resolution WHA59.24 from May this year, could potentially harm the patent system. The United States was therefore proposing a more “pragmatic” solution, as it appeared the WHO tried to go beyond its technical expertise, the source said.

The working group was mandated by the resolution, which states that it should come up with: “a global strategy and plan of action in order to provide a medium-term framework based on the recommendations of the commission” aiming at “inter alia, securing an enhanced and sustainable basis for needs-driven, essential health research and development relevant to diseases that disproportionately affect developing countries.”

This refers to the WHO Commission on Intellectual Property Rights, Innovation and Public Health (CIPIH), which published with its recommendations in April.

The US email also noted that these issues should be discussed at the World Trade Organization (WTO) and the World Intellectual Property Organization (WIPO), the source said.

A demarche is used for direct high-level government-to-government communication. It is common practice for embassies to contact relevant countries before meetings to lay out their view and ask for support, and for this meeting, the United States wanted to ensure that the meeting would not undermine the IP regime, according to a developed country official.

Signing a free trade agreement with the United States usually carries intellectual property-related terms that exceed those of international rules like the 11-year-old WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).

A Peruvian official told a side meeting at a WIPO meeting last week that the country somewhat hastily broke from its Andean region partners and signed a deal with the United States last year because it was on the verge of a presidential election. In the agreement, Peru agreed to terms beyond the TRIPS agreement, and once the agreement takes effect, it will have to check with the United States before agreeing to terms in multilateral negotiations at international organisations, the official said. The Peru agreement is expected to come before the US Congress this year for ratification, but may already have legal effect in Peru, he said.

WHO and IP

On 7 December at the WHO meeting, Brazil also talked about WHO’s mandate in relation to IP, but instead of arguing that it should stay out if it, Brazil said that WHO should do its own work based on its “own mandate from its own decision-making body,” with access to health as the main objective.

Brazil said that the intergovernmental working group should avoid “trying to import mandates from other United Nations agencies,” adding that WHO should analyse intellectual property as it relates to health concerns, and “take a health perspective on IP” as the objective should be “access to health.”

The Brazilian delegate said WIPO dealt with the protection of IP per se, and the WTO with liberalisation of trade.

Brazil particularly took issue with references to counterfeiting, and said the CIPIH had not really dealt with this issue, which was now pushed at the WTO as well as WIPO.

One developed country official told Intellectual Property Watch that the intervention of Brazil was “bizarre,” and that the suggestion that counterfeit medicines is not a public health issue was a “farce.” Also, the source said, issues such as patent pools belong in WIPO, and had nothing to do with WHO.

Other countries, including Canada and Norway, suggested that the plan and strategy of action should state that no work here will duplicate work in other organisations, but other countries took issue with this, including the United States, Australia and Japan.

“Work here should take into account work [in other organisations],” the United States said, which also noted that the World Health Assembly had not endorsed, but welcomed the CIPIH report.

Tove Iren S. Gerhardsen may be reached at tgerhardsen@ip-watch.ch. William New contributed to this story.

source: IP Watch