Official: In WTO Talks, US Pushes Russia To Restrictive TRIPS Standard

Russia is negotiating for accession to the World Trade Organization at the same time it is talking with the United States bilaterally about exceeding the terms of the WTO agreement on intellectual property rights, and a senior Russian official said last week that the two have become intertwined.

According to Russia’s lead negotiator on WTO accession, Maxim Medvedkov, his government is being asked by the United States bilaterally to commit to provide more protections for intellectual property rights than it must do in acceding to the WTO. He stressed that Russia agrees with and is fulfilling all intellectual property rights terms of the WTO. But he said the talks are related and proceeding simultaneously.

Pressure is on to conclude accession talks in time for the next ministerial, in Hong Kong on 13 to 18 December, sources said.

“We have no difference of views with the United States in terms of the importance of all issues under compliance with the WTO,” including passing legislation and implementation, Medvedkov said in an interview after the 20 October talks on Russian accession at the WTO.

“We understand there are enough things we have to do. We are doing them,” he said. “We are interested in completing this process as soon as possible” especially as Russia is a big exporter of intellectual property, he added. “But I think we have to draw a line between WTO and bilateral issues,” he said.

Members of the WTO (there are now 148) are held to the terms of the 1994 Agreement on the Trade-Related Aspects of Intellectual Property Rights (TRIPS), with variations on implementation dates. An acceding country must show in the multilateral format, the accession working party, that it meets or will meet the terms of the TRIPS.

But some countries, especially the United States, who have recognised the advance of technology and other issues that make it necessary to develop new levels of protection for their intellectual property, are pushing at the bilateral level to get countries to exceed TRIPS. This appears to be the case with Russia.

“Bilaterally, we are discussing different things that could be considered TRIPS-plus,” Medvedkov said. “We are discussing all issues together.”

“We will fully implement TRIPS from the date of accession,” he added. “We have some issues on the bilateral agenda. We intend to solve those issues as part of the discussion for WTO. It’s important that the trains arrive at the station at the same time.”

Medvedkov said he is not responsible for Russia’s bilateral negotiations with the United States and said he did not know the specifics of how the agreement would surpass TRIPS. But other sources say that making pharmaceutical test data that is exclusive to applicant for marketing approval for a period of years may be one example of a bilateral provision not found in TRIPS, as it is typically sought by the US bilaterally. TRIPS requires the protection of data against unfair use, but data exclusivity is seen by some as giving a monopoly whether there is a patent or not.

The Office of the US Trade Representative generally states that nothing in its bilateral deals will negatively affect a country’s ability to use the flexibilities in TRIPS. But some concern has been raised that this data exclusivity could undermine a government’s ability to issue a compulsory license for a patented drug it deems necessary for its people’s public health, an option available under TRIPS.

The ability of countries to use the TRIPS flexibilities was reinforced in the Doha Declaration on TRIPS and Public Health, agreed at the trade ministerial in Doha, Qatar in 2001 that launched the current negotiating round.

Under a compulsory license, a producer company must allow others to see how to make its drug in order to make their own. But since bringing a product to market requires showing test data to the local regulatory agency, some fear that making the original test data exclusive could effectively block the compulsory license.

US negotiators now regularly negotiate bilaterally to add intellectual property protections not found in TRIPS. Proponents argue that sovereign governments negotiate in their free will, while critics have argued that the US uses its weight to push these provisions. Recently, several Colombian IP negotiators quit the bilateral US-Andean talks out of what they said was frustration with the inflexible US position (IPW, 17 October 2005).

Issues of going further than TRIPS in a WTO accession arose in the case of Cambodia in 2003. At the time, the non-governmental Medécins Sans Frontières stated, “The accession of Cambodia to the WTO in Cancun [the 2003 WTO ministerial] is an example of the continued need to defend the Doha Declaration against pressures from wealthy countries to not make use of TRIPS flexibilities. Cambodia cited the Doha Declaration in their national patent law of 2003, thereby excluding pharmaceutical products from patent protection until 2016. But during negotiations on Cambodia’s accession to the WTO, apparently under pressure from the United States, Cambodia agreed to implement TRIPS-plus legislation that will hinder or delay the availability of generic medicines to its people.”