IP Rises At Assembly As Brazil Proposes Greater WHO Role In Trade

By Tove Iren S. Gerhardsen
Intellectual property has become a major issue at this year’s World Health Assembly, with Brazil introducing a new draft resolution on public health, innovation and intellectual property, adding to various draft resolutions involving IP already under discussion. Meanwhile, a question was raised this week about WHO leadership on these issues.

On 16 May, Brazil submitted a draft resolution to the WHO secretariat that would strengthen support for the use of flexibilities in trade rules for countries’ public health needs. The proposal was made available as a formal document (A60/B/Conf.Paper No.3) in all translations on 17 May, sources said.

Highlighting flexibilities and requesting that WHO get more involved in the area of trade, the draft resolution may bring countries’ real-life recent moves in this area into the policy discussions, sources said.

The draft resolution refers to resolution WHA59.24 from last year’s assembly, which set up the Intergovernmental Working Group on Public Health, Innovation and Intellectual Property (IPW, Public Health, 27 May 2006).

The mandate of the group (“IGWG”) is to come up with a draft global strategy and plan of action to provide a medium-term framework to secure enhanced and sustainable research and development of treatments for neglected diseases by May 2008.

The IGWG progress report to this assembly is scheduled for next week but may happen sooner, sources said.

Brazil requests the WHO director general to be proactive and provide technical and policy support to countries that intend to use the World Trade Organization (WTO) Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) flexibilities to increase access to existing medicines. WHO also should help countries implement the Doha Declaration on TRIPS and Public Health from 2001, which affirms that “the TRIPS agreement does not and should not prevent members from taking measures to protect public health,” the proposal said.

In the draft resolution, Brazil also requests the director general to “express support for countries that make use of the flexibilities contained in TRIPS in order to increase access to medicines.” Brazil, Italy and Thailand are among the most recent countries that have used one of these TRIPS flexibilities, compulsory licensing, which allows a government or third party to use a patented subject matter without the authorisation of the patent holder, who is then compensated. A Thai source said in a 15 May meeting that Thailand has come under “huge pressure” for doing so.

The Brazil resolution refers to the United Nations Millennium Development Goals, and says that “sources of generic versions of new medicines are being limited as pharmaceutical product patents are adopted by almost all members of WTO.”

But not all countries agree that WHO should be actively involved in trade. The United States said during a committee meeting on 16 May on the WHO medium-term strategic plan (2008-2013) and proposed programme budget (2008-2009) that all information WHO is providing on trade should be cleared with the WTO and the World Intellectual Property Organization, and should be “unbiased” and “evidence-based.”

WHO Director General Margaret Chan did not highlight IP in her opening speech, but referred to striking the right balance between immediate access and stimulating innovation, mentioning the IGWG.

A source said that the 11 countries of the South East Asia region of WHO have said they would support the Brazilian draft resolution.

Concern About WHO Leadership

Brazil also requests member states to fully and actively support the IGWG and “provide adequate resources to WHO for this purpose.” Some countries have shown dissatisfaction with the process so far.

On 16 May, a Thai official also called for more support of the IGWG and said he had “never seen any leadership that is so weak” on any subject.

He also accused the WHO secretariat of being biased, referring to evidence he said was discovered by one member state that one of the WHO collaborating centres on influenza had disrespected the terms and shared the virus outside the system and some IP rights had been obtained (IPW, Public Health, 16 May 2007).

The official said that instead of investigating, WHO had “wiped out the terms of the guidelines,” which are no longer on the website. He said this was a “biased and non-transparent action by the secretariat.”

A WHO official confirmed on 15 May that the guidelines were removed, but referred to new best practices that are being developed. WHO was unavailable for further comment.

Chan replied to the Thai official that the collaborating centres constitute a “major contribution” to WHO, but that “some behaviour of certain centres” has not been in accordance with the guidelines and WHO takes full responsibility for not having monitored them. She said it was her personal commitment to protect the credibility of WHO, and referred to the development of new terms of reference and good practices for the centres. She said WHO may need to consider sanctions against centres that do not comply in the future.

In the same session, Switzerland said it could not find anything in the medium-term plan on how the IGWG will be financed. Germany on behalf of the European Union said that in the plan, “the ongoing work of the [IGWG] as well as the mandate of WHO to assist countries in using TRIPS flexibilities when necessary are not reflected in any of the expected results.” Norway echoed this.

Avian Flu

Separately, a drafting group on avian flu continued its work but no specific result was reported. One participant said the main issues in three resolutions being considered had been presented and clusters of concerns discussed. The issue being addressed is the sharing of avian flu virus strains and whether a requirement for prior informed consent before using the strains would be realistic, a developed country source said.

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