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IP-Watch Summer Interns

IP-Watch interns talk about their Geneva experience in summer 2013. 2:42.

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The Politicization Of The US Patent System

The Washington Post story, How patent reform’s fraught politics have left USPTO still without a boss (July 30), is a vivid account of how patent reform has divided the US economy, preempting a possible replacement for David Kappos who stepped down 18 months ago. The division is even bigger than portrayed. Universities have lined up en masse to oppose reform, while main street businesses that merely use technology argue for reform. Reminiscent of the partisan divide that has paralyzed US politics, this struggle crosses party lines and extends well beyond the usual inter-industry debates. Framed in terms of combating patent trolls through technical legal fixes, there lurks a broader economic concern – to what extent ordinary retailers, bank, restaurants, local banks, motels, realtors, and travel agents should bear the burden of defending against patents as a cost of doing business.


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    Letter Shows US Pressure On Global Fund For Compulsory Licensing, Generics

    Published on 12 February 2013 @ 5:53 pm

    By , Intellectual Property Watch

    A 2011 letter from the top Republican on the United States Senate Finance Committee condemned efforts by the Global Fund to train public health officials on the use of flexibilities to the patent system contained in international trade rules. The letter, which also attacked the purchase of generic medicines over brand-name drugs, came just months before the US helped remove the head of the Global Fund, ultimately replacing him with an American official.

    The Global Fund to Fight AIDS, Tuberculosis and Malaria, based in Geneva, was created to raise resources to fight those diseases and direct those resources toward the greatest areas of need. It has raised billions of dollars but ran into difficulties during the global financial crisis.

    The 13 April 2011 letter [pdf] from Sen. Orrin Hatch, a Utah Republican, to US Secretary of State Hillary Clinton, asserted that the Global Fund had paid more for generic drugs than for brand name versions, which amounted to a US-funded program “making inefficient and unnecessarily costly procurement decisions that come with dire consequences.”

    It also criticised the Global Fund’s training efforts for promoting the use of compulsory licensing, suggesting that it is an abuse of the patent system and goes against the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).

    “By advocating for developing countries to disregard the [TRIPS Agreement] through issuing compulsory licences to gain access to Global Fund grants, we are abusing the system,” Hatch said, calling these actions “inconsistent with patent law.”

    But under TRIPS, compulsory licensing is a built-in option for governments as a way to make patented drugs more affordable for their populations in times of need. Countries are permitted to decide for themselves when they wish to use compulsory licences, and have a series of steps to follow if so. This was reinforced in the 2001 Doha Declaration on TRIPS and Public Health.

    But patent-holding innovator companies, such as those in the US, suffer when governments elect this path, as they depend on high prices to recover the costs of research and development. Hence, pressure has been intense on developing countries – especially those with larger markets – that elect to use compulsory licencing.

    The Hatch letter included attachments attempting to show how the Global Fund paid more for generics than for brand-name versions, though it is not entirely clear. It also encloses a Global Fund training presentation from February 2011 that included the advice that:

    “The Global Fund encourages recipients to apply the flexibilities provided within the national laws and in the [TRIPS Agreement], as interpreted in the [Doha Declaration], to achieve the lowest possible price for products of assured quality.”

    The presentation also said that fund recipients that lack capacity to assess intellectual property rights issues could contract the necessary expertise.

    The presentation further showed price savings from the use of generics, and also called for greater access to patent information so that countries can better determine what needed medicines are still under patent and act accordingly, perhaps avoiding the “procurement bottleneck” brought on by intellectual property rights.

    Global Fund Executive Director Michel Kazatchkine resigned in January 2012. After a transition period, US official Mark Dybul took the reins, becoming executive director on 21 January of this year. Dybul was known for his role in the US-based President’s Emergency Program for AIDS Relief (PEPFAR).

    PEPFAR was the measure for the complaints in Hatch’s letter, which stated that the PEPFAR legislation carefully spelled out how generics would be purchased for use in certain countries only, and did not require the purchase of generics. Hatch suggested that the Fund’s promotion of generics “without regard to the health and financial consequences” may have cost “millions of dollars of excessive waste and abuse of the program.”

    The transition process at the Global Fund since Kazatchkine’s departure was conducted in secret, without public scrutiny. As a result, it is not known the degree to which US industrial or bottom line interests might have contributed to the changes there, or how the change has affected the Fund’s practices in relation to procurement of drugs, patented or otherwise.

    William New may be reached at wnew@ip-watch.ch.

     


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    We welcome your participation in article and blog comment threads, and other discussion forums, where we encourage you to analyse and react to the content available on the Intellectual Property Watch website. By participating in discussions or reader forums, or by submitting opinion pieces or comments to articles, blogs, reviews or multimedia features, you are consenting to these rules.

    We welcome your participation in article and blog comment threads, and other discussion forums, where we encourage you to analyse and react to the content available on the Intellectual Property Watch website.

    By participating in discussions or reader forums, or by submitting opinion pieces or comments to articles, blogs, reviews or multimedia features, you are consenting to these rules.

    1. You agree that you are fully responsible for the content that you post. You will not knowingly post content that violates the copyright, trademark, patent or other intellectual property right of any third party or which you know is under a confidentiality obligation preventing its publication and that you will request removal of the same should you discover that you have violated this provision. Likewise, you may not post content that is libelous, defamatory, obscene, abusive, that violates a third party's right to privacy, that otherwise violates any applicable local, state, national or international law, that amounts to spamming or that is otherwise inappropriate. You may not post content that degrades others on the basis of gender, race, class, ethnicity, national origin, religion, sexual preference, disability or other classification. Epithets and other language intended to intimidate or to incite violence are also prohibited. Furthermore, you may not impersonate others.

    2. You understand and agree that Intellectual Property Watch is not responsible for any content posted by you or third parties. You further understand that IP Watch does not monitor the content posted. Nevertheless, IP Watch may monitor the any user-generated content as it chooses and reserves the right to remove, edit or otherwise alter content that it deems inappropriate for any reason whatever without consent nor notice. We further reserve the right, in our sole discretion, to remove a user's privilege to post content on our site. IP Watch is not in any manner endorsing the content of the discussion forums and cannot and will not vouch for its reliability or otherwise accept liability for it.

    3. By submitting any contribution to IP Watch, you warrant that your contribution is your own original work and that you have the right to make it available to IP Watch for all purposes and you agree to indemnify IP Watch, its directors, employees and agents against all damages, legal fees and others expenses that may be incurred by IP Watch as a result of your breach of warranty or of these terms.

    4. You further agree not to publish any personal information about yourself or anyone else (for example telephone number or home address). If you add a comment to a blog, be aware that your email address will be apparent.

    5. IP Watch will not be liable for any loss including but not limited to the following (whether such losses are foreseen, known or otherwise): loss of data, loss of revenue or anticipated profit, loss of business, loss of opportunity, loss of goodwill or injury to reputation, losses suffered by third parties, any indirect, consequential or exemplary damages.

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    7. You acknowledge and agree that you use and/or rely on any information obtained through the discussion forums at your own risk.

    8. For any content that you post, you hereby grant to IP Watch the royalty-free, irrevocable, perpetual, exclusive and fully sub-licensable license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display such content in whole or in part, world-wide and to incorporate it in other works, in any form, media or technology now known or later developed.

    9. These terms and your posts and contributions shall be governed and interpreted in accordance with the laws of Switzerland (without giving effect to conflict of laws principles thereof) and any dispute exclusively settled by the Courts of the Canton of Geneva.

     

     
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