Unconditional 17-year exemption from pharmaceuticals patents agreed

3 November, 2015


London, 3 Nov (Sangeeta Shashikant) – The United States and the Least Developed Countries (LDCs) at the World Trade Organization have reached agreement ad referendum on a pharmaceutical patent exemption for a duration of 17 years, according to trade diplomats.

With this exemption, the world’s poorest nations will not be obliged “to implement or apply” or “to enforce” patents as well as test data protection for pharmaceutical products until 1 January 2033.

This agreement was reached during a high level meeting on 29October between US Ambassador Michael Punke and representatives of the LDC Group, Ambassador Shameem Ahsan from Bangladesh and Ambassador Christopher Onyanga Aparr from Uganda.

As part of the agreement, the LDC Group also secured waivers from ‘mailbox’ and exclusive marketing right obligations, a trade diplomat said, adding that there were no restrictive conditions attached to the decision text.

With these waivers, LDCs will not be obliged to make available a mechanism for filing patent applications for pharmaceutical products (mailbox) or to grant exclusive marketing rights to such applications until 1 January 2033, although the waivers would have to be reviewed by the WTO General Council annually.

Trade diplomats expect a decision text based on this agreement to be formally adopted by the Council of the Trade-related Aspects of Intellectual Property Rights (TRIPS) when it meets this Friday (6 November) at 10 am at the WTO.  The waivers from mailbox and exclusive marketing rights will also have to be endorsed by the General Council or by the Ministerial Conference, which meets in Nairobi in December.

Prerna Bomzan from LDC Watch based in Kathmandu, Nepal said, "It is outrageous that the most vulnerable segment of the international community had to struggle to defend their basic right to health. Such negotiations make a mockery of Special and Differential Treatment for LDCs and of justice, human rights and sustainable development which are purportedly championed by the US.”

“The deal reached is a slight improvement over the previous transition period which was for 14 years and without a mailbox waiver, but it is a far cry from the LDC Group’s original request to the TRIPS Council for a pharmaceutical patent exemption linked to a country’s graduation from LDC status, and what is needed to deal with the public health problems in LDCs,” said Chee Yoke Ling from Third World Network.

The LDCs’ original request received widespread unconditional support from developing countries, the European Union members, various UN and international agencies (WHO, UNITAID, UNAIDS and UNDP), suppliers of generic medicines to LDCs, civil society organizations from across the world and even members of the US Congress and Senators including Senator Bernie Sanders, a contender for the US presidential campaign.

However, none of this moved the US Administration, which continued to stand largely alone in its opposition to the motivated requests of the poorest nations. Instead the US offered a paltry 10-year duration, which was firmly rejected by the LDC Group.

According to trade diplomats, following the 10-year offer, the LDC Group hopefully countered with a 30-year duration, but even this was not acceptable to the US.

“By insisting first on 10 years and then drawing the line at 17 years, the US once again reveals itself as the bullyboy for Big Pharma, willing to do any dirty work needed to champion its global hegemony over the elixirs of life or death”, said Professor Brook K. Baker from Health GAP (Global Access Project) & Northeastern University School of Law, Program on Human Rights and the Global Economy.  

James Love from Knowledge Ecology International reacting to the deal said, “The decision to extend the WTO waiver of drug patent rules for 17 years is a better outcome than the 10-year waiver proposed by the US Trade Representative Ambassador Michael Froman, but it is also a disappointment, and falls short of what was asked and needed” adding that, “The Obama Administration’s trade policy continues to favor drug companies over poor people, and to prop a system that needs to be fixed and changed, and not defended.”

It is “puzzling that the US felt it had to play hard-to-get with the 34 poorest countries of the world instead of joining the consensus to grant the request,” said Ellen t’ Hoen, an expert on intellectual property and access to medicines.+