TRIPS Public Health Amendment Deadline Missed

Governments negotiating to amend the World Trade Organisation intellectual property agreement to allow countries to export generic pharmaceuticals to other countries in need failed to reach agreement by a 31 March deadline, according to sources in Geneva.

The deadline was set last year to replace a 30 August 2003 waiver for countries to manufacture products for export under compulsory licenses, which allow local manufacturers to sidestep patents in cases of need. WTO members have agreed to convert the waiver into a formal amendment to the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) but cannot agree on how. The waiver remains in place in the meantime.

The issue arose at a 31 March meeting that concludes a previously suspended TRIPS Council meeting. The meeting was the last as TRIPS Council chair for Tony Miller of Hong Kong. He is superseded by Choi Hyuck of Korea who will handle consultations with members leading up to a May meeting of the WTO General Council, according to a WTO official.

An African region proposal on the permanent amendment is opposed by the European Union, Switzerland and the United States, the official said. The difference appears to be over whether the translation from a waiver into an amendment has to be literal or can have technical changes.

The 31 March meeting was emotionally charged, according to one participant, as the African nations’ opening statement invoked the highly politicized case in the United States of Terry Schiavo, a brain-damaged woman whose feeding tube was ordered removed by the courts. The African point was to call attention to the dire situations of people in their countries and elsewhere who depend on the export of affordable medicines, and to argue that the waiver is not as secure as an amendment would be.

In addition, Kenya charged that some members have broken promises made in informal discussions before the 30 August decision, and said it could provide details, the WTO official said. The United States responded that it was concerned and disagreed that there had been behind-the-scenes promises, the official said. African members also criticized developed countries for not putting forward their own proposal.

Also on 31 March, informal consultations were held on the link between TRIPS and the U.N. Convention on Biological Diversity. The consultations are outside the TRIPS Council, where the issue covers three items, TRIPS Article 27.3(b) [on the patentability of plants and animals], biodiversity, and traditional knowledge and folklore.

Members in the meeting identified a timeline for the issue, a Geneva source said. A chair’s report will be presented to the May meetings of the General Council and the Trade Negotiations Committee, which is guiding the current WTO trade liberalisation negotiations. A document on the issue could emerge in July, and the issue could be part of the outcome of the WTO ministerial conference in Hong Kong in December as well as part of the final Doha Development Agenda results, possibly completed by the end of 2006.