WHO Members Near Accord On Global Strategy On IP And Health

By William New
Down to the final hours before the closing ceremonies of this year’s World Health Assembly, governments have nearly completed work on a global strategy to stimulate research into neglected diseases disproportionately affecting poor populations. But work skipped to the draft assembly resolution after the draft plan of action provoked a debate on the role of the World Health Organization in intellectual property-related matters, according to participants.

“WHO’s primacy as the technical agency for health, and the mandate and its core competencies will not be allowed to be diluted,” an official from India and an official from Brazil jointly told Intellectual Property Watch.

At issue is the end of the two-year mandate of the WHO Intergovernmental Working Group on Public Health, Innovation and Intellectual Property (IGWG). WHO members are addressing a draft strategy, plan of action and the assembly resolution language.

At presstime Friday at midnight, the meeting had just left the plan of action with some undecided sections and moved to the draft resolution to be put to the full assembly for approval tomorrow. In that resolution, one sensitive area was expected to be a proposed “Quick Start Programme” aimed at early implementation of elements of the global strategy.

The work on the plan of action appeared to mainly involve deciding who would be the primary stakeholders on each action. Debate appeared to centre on the WHO role.

Meanwhile, only one provision in the draft global strategy remained substantially unsettled, government sources said. This was Paragraph 18 of the principles, which attempts to place public health before or on par with commercial interests.

The new text on Paragraph 18 read: “The interests of health and trade should be appropriately balanced and coordinated.”

For the most recent available texts (from morning of 23 May), please see (IPW, WHO, 23 May 2008).

Agreement was reached on provisions ultimately in the form of a deal, participants said. Gone are provisions on data exclusivity, test data, patent examiners and counterfeiting, and a new provision was created on competition policy.

A “friends of the chair” group including Brazil, Chile, European Union, India, Kenya, Norway and the United States met in the afternoon, according to a source.

The US and EU agreed to drop a paragraph which would have strengthened WHO’s anti-counterfeiting (Paragraph 6.2.e). The draft provision had numerous variations in brackets, reflecting disagreement.

Key developing countries agreed to drop provisions that would have encouraged information sharing on data exclusivity (Article 5.3.b) as well as on patent quality (Art. 5.3.d); and that would have ensured avoidance of unfair restrictions on the use of undisclosed test data (Art. 5.3.e).

They also agreed to removal of the terms “anti-competitive” and “pro-competitive” practices. Instead, new language on competition, Art. 6.3.f, was generally agreed, although Ecuador was seeking the addition of a reference to the World Intellectual Property Organization Development Agenda. The new language stated (with the possible addition of a Development Agenda reference):

“Consider, where necessary, and provided that they are consistent with the provisions of the Agreement on TRIPS, taking appropriate measures to prevent the abuse of intellectual property rights by right holders or the resort to practices which unreasonably restrain trade or adversely affect the international transfer of technology, in the field of health products.”

TRIPS is the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights.

On the Paragraph 18 human rights issue, Venezuela, Bolivia and Ecuador played a role in attempting to maintain the provision against pressure from developed countries seeking to prevent the creation of a new right to health.

Developed countries such as the United States, European Union and Canada have been criticised by some civil society members for seemingly opposing human rights and public health principles within the negotiation while not informing their stakeholders of the approach. Officials from those countries could not be reached for comment.

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