Cautious Start For WHO IP Working Group As Members Feel Their Way

By Tove Iren S. Gerhardsen
After a slow start in a weeklong meeting on intellectual property and public health, World Health Organization (WHO) member states appear to have begun discussing the possible substance of a plan to ensure that medical treatments are developed for diseases mainly affecting poor countries. A number of developing countries called for more language on intellectual property rights.

The 4-8 December meeting is the first for the WHO Intergovernmental Working Group on Public Health, Innovation and Intellectual Property (referred to as the “IGWG”).

A number of countries, including Canada, Finland on behalf of the European Union, and Switzerland, supported the idea of proceeding with a document prepared by the WHO secretariat, at least as a basis for discussions.

This document, entitled, “Elements of a global strategy and plan of action,” suggests the following areas: Prioritising research and development needs; promoting research and development; building innovation capacity; improving delivery and access; ensuring sustainable financing mechanisms and establishing monitoring and reporting systems.

Ghana, on behalf of the African Group, said that the issues of intellectual property rights management and transfer of technology also should be mentioned in the document to be discussed. South Africa supported this.

The United States did not want to discuss these two issues as separate items until the WHO secretariat had prepared documents outlining the areas of action. The secretariat promised to have this ready by 6 December.

India and Thailand suggested to first discuss the strategy, then the plan of action with short and medium-term action and later funding mechanisms through possibly a trust fund. This could be done through three drafts and working groups, India said.

How this initiative should be funded also was highlighted by non-governmental organisations as well as countries such as Kenya and Laos.

The Draft

This is the first meeting of the working group, which was set up by the World Health Assembly in May 2006 (IPW, Public Health, 27 May 2006).

The group is mandated by resolution WHA59.24, which merges a previous proposal by Brazil and Kenya to set up a global framework for essential health research and development (EBB117 R13), and one resolution based on the April report of the WHO Commission on Intellectual Property, Innovation and Public Health (CIPIH). It made some 60 recommendations (IPW, Public Health, 3 April 2006).

The group must develop a “global strategy and plan of action in order to provide a medium-term framework on the recommendations of the Commission [CIPIH],” according to the resolution.

Some sources argued that if discussions were based on the WHO document, important aspects of the CIPIH report would be lost. Kenya also said it was important “not to lose sight of the recommendations.”

The commission’s recommendations target many actors – not just the WHO secretariat. “We must acknowledge this fact at the outset, and focus our work in this meeting in particular on those recommendations that fall within the core competency of the WHO,” the United States said in a statement.

Mexico said the meeting “seems to have left out intellectual property rights,” and Brazil, which on 4 December called on the WHO secretariat to provide all the documents that had led to this meeting dating back to 2001, said that “access, access and access again” was what had brought this meeting together. An “essential problem is the issue of intellectual property,” said a Brazilian official.

Iran, on behalf of the Eastern Mediterranean group of countries, said that although the CIPIH report recommended that bilateral trade agreements should not contain “TRIPS-plus” [exceeding the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights] provisions, the “suggested elements” in the WHO documents “do not even incorporate these issues.”

Bolivia also highlighted the importance of this recommendation for access to drugs in developing countries. Oxfam also raised concern about TRIPS-plus provisions for developing countries.

Australia said that this initiative should be consistent with the international intellectual property rights framework.

The International Federation of Pharmaceutical Manufacturers and Associations said that hundreds of compounds are in development and its members take it seriously the commitment to develop medicines, also for developing countries.

One developing country source told Intellectual Property Watch that if the possible strategy and plan of action includes language on TRIPS and bilateral agreements, it would give these countries “a little more leverage” when discussing these agreements with developed countries. “At the very minimum, it creates public pressure on these issues,” the source said, such as requirements extending beyond TRIPS.

A least-developed country official said that the priorities among the countries are different, and this group was interested in affordability and access to medicines.

A French official told Intellectual Property Watch that France and rest of the intergovernmental medicine initiative UNITAID is “absolutely supporting” an idea to create a patent pooling mechanism. (IPW, 21 September 2006).

He said the idea of pooling patents was more important for some diseases than others, especially certain HIV/AIDS medicines, and he believed this was an idea that could be supported in the working group as well. This is also identified as a bullet point in the WHO document.

Chairs and Experts

Peter Oldham, counsellor at the Canadian mission in Geneva, was elected chair of the working group, with the following five countries representing the five other WHO regional committees not represented by the chair (Americas): Kenya (Africa), Libya (Eastern Mediterranean), the Netherlands (Europe), India (South East Asia) and Singapore (Western Pacific).

One non-governmental source told Intellectual Property Watch that although Oldham did not have much intellectual property rights experience, he had worked on the landmine treaty (1997 Mine Ban Treaty) and would be good at bringing the different parties together.

There also has been some discussion about experts appointed to the working group, with some questioning that an American, Dick Wilder, did not reveal that he has been working for the pharmaceutical industry, and another, Professor N.K. Ganguly also is representing the Indian government. The WHO said it would look into the last case.

Tove Iren S. Gerhardsen may be reached at tgerhardsen@ip-watch.ch.