Questions Over WIPO Statements At UN Secretary-General’s Panel On Access To Medicines

The World Intellectual Property Organization, a specialized agency of the United Nations, was unique among Geneva-based UN agencies for offering views at both recent meetings of the UN High-Level Panel on Access to Medicines held in Geneva and New York this month. Now WIPO has come under criticism from some public health advocates for the views it gave.

The panel was convened by UN Secretary-General Ban Ki-moon in December (IPW, Public Health, 16 December 2015) with a deadline of June 2016. Its objective is “to review and assess proposals and recommend solutions for remedying the policy incoherence between the justifiable rights of inventors, international human rights law, trade rules and public health in the context of health technologies.”

WIPO representatives intervening at member state briefings in Geneva and New York on 1 and 4 February, respectively, gave a message of concern about the underlying assumptions of the panel.

The nongovernmental organisations sent a letter dated 11 February to WIPO Director General Francis Gurry with their own concerns about the WIPO message to the panel. The health groups signing the letter include Knowledge Ecology International, Oxfam, StopAIDS, Treatment Action Campaign, and Third World Network.

Tom Bombelles, head of global health at WIPO, was quoted in the letter as telling the Geneva gathering that WIPO is “sensitive” to the assumption that there is “policy incoherence between using intellectual property laws and regulations to encourage innovation, and the imperative of delivering medicines and other health services to those in need.”

Similarly, the WIPO representative to the UN in New York, Lucinda Longcroft, was quoted saying WIPO is “sensitive to any assumption in the HLP mandate that there is a policy incoherence between using IP laws and regulations to encourage innovation and the imperative of delivering medicine and health services to those in need.”

Intellectual Property Watch attended and reported on both meetings (IPW, Public Health, 1 February 2016; IPW, Public Health, 5 February 2016).

The WIPO representatives also mentioned a trilateral study published jointly by WIPO, the World Health Organization, and World Trade Organization as “adding light, not heat,” to the at-times controversial issue. Neither the WHO nor the WTO representatives mentioned the concern about the panel mandate in their remarks at the Geneva meeting. WHO and WTO did not present views in New York. WIPO’s involvement in health issues at a more concentrated level is relatively recent, dating back a few years.

The Secretary-General’s panel has invited as much input as possible, and this week extended the deadline for contributions to 28 February.

“Profoundly Disturbing”

The NGOs in their letter called the WIPO reservations about the mandate on policy incoherence “remarkable” and “profoundly disturbing.”

They said the WIPO remarks are “based on erroneous assumptions” themselves, as “they imply that IP protection – especially patents and the grant of monopolies – are the critical mechanism to support product development.”

Rather, they said, “while under the current system patents play a role in innovation, the costs are high, and equating patent protection with innovation both overstates the importance of patent monopolies and ignores the possibilities of reforms that eliminate the trade-offs between innovation and access.”

The WIPO interventions also overlook the limitations of the current system with “market failure in the funding of basic science, unbiased comparative clinical trials, neglected diseases, antibiotics, rare diseases, and global health threats such as Ebola, unwanted rationing of medicines, excessive prices and unequal access,” they said.

The letter raised an earlier heated debate at the WTO that arose in the context of the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), and which resulted in the 2001 Doha Declaration on TRIPS and Public Health.

The letter also provided details of a 2011 proposal to the WIPO Standing Committee on the Law of Patents (SCP), which raised concerns about policy incoherence in public health related to IP rights.

Official WIPO Position?

The letter asked the WIPO secretariat to clarify whether the views of the WIPO officials were “a reflection of the WIPO secretariat’s official position?” If so, the letter asks how it fits with the 2007 WIPO Development Agenda, and the “robust (and unresolved)” discussions on patents and health in the WIPO SCP.

Bombelles came to WIPO as an expert from the US pharmaceutical industry. It was noted by some observers that the US government was the only one to voice strong concerns about the mandate of the high-level panel during the recent meetings.

Intellectual Property Watch asked one of the high-level panellists at the New York meeting a question about how the representatives were chosen, and was told that it is up to the organisation to designate its representative. Intellectual Property Watch has not asked WIPO about the choice, but it is logical that the head of public health in Geneva and the New York representative would be the representatives. It might be less clear whether the message reflects an agreed view of the WIPO membership.

WIPO is a member-state driven organisation, and it remains to be seen whether questions will be raised by WIPO member states, which historically have a range of views on these issues.