On 12 December 2017, KEI delivered the following intervention to WIPO on pressures faced by Brazil and Colombia in using TRIPS flexibilities.
12 December 2017
SCP 27
Thank you Chair.
We welcome the opportunity to provide inputs on the constraints faced by developing countries and LDCs in making full use of patent flexibilities in promoting access to medicines and safeguarding public health. In this regard, KEI’s 21-page submission to the Committee documents some notable examples of political and trade pressures brought to bear against countries who exercised or contemplated exercising the flexibilities available to them under the WTO TRIPS Agreement. Our submission provided examples from Brazil, Colombia, Ecuador, India, Indonesia, South Africa, and Thailand. Our full submission can be found on the WIPO SCP Electronic Forum site: http://www.wipo.int/export/sites/www/scp/en/meetings/session_27/3rdparty_comments/kei.pdf
To illustrate a some points from this submission, I will provide a few examples of pressures countries have faced.
In early January 2001, a few days before leaving office, President Clinton requested the establishment of a panel at the WTO, designed to challenge Article 68 of Brazil’s 1996 industrial property law, which contained provisions regarding the local manufacturing of products. After Clinton left office, the Bush Administration withdrew the WTO case against Brazil on 25 June 2001. (Source: USPTO and Congress bash India over the Nexavar compulsory license, https://www.keionline.org/node/1447).
The New York Times reported on this dispute as follows:
The United States unexpectedly withdrew a patent complaint against Brazil in the World Trade Organization today and agreed to settle out of court a dispute widely seen as symbolic of the debate over who may manufacture and sell drugs to treat AIDS in poor countries.
… Brazil, which had been moving to the forefront of an international challenge to large Western pharmaceutical companies and their high-priced anti-retroviral medicines, has sharply cut its mortality rate from AIDS in recent years with an aggressive campaign to make drugs available cheaply and effectively, experts say.
American officials, who had threatened Brazil with trade sanctions, said two months ago that this case was important to uphold the general principle of protecting intellectual property rights and that Brazil was using a provision in its law to pressure patent owners to make products there. Brazil’s AIDS chief, Dr. Paulo Roberto Teixeira, responded on May 2, saying that his country was being punished for challenging American companies in ways that other nations did not. (Source: U.S. Drops Case Over AIDS Drugs in Brazil, http://www.nytimes.com/2001/06/26/world/us-drops-case-over-aids-drugs-in-brazil.html).
As noted by document SCP/27/6, prepared by the Secretariat, the “Ministry of Health of Colombia described the difficulties and pressures experienced in taking administrative steps to issue a declaration of public interest in order to issue a compulsory license.” In particular, paragraph 9 of the Secretariat document describes the communication, dated 27 April 2016, from the Colombian Embassy in Washington, D.C. to Colombian authorities in Bogota recounting the concerns expressed by the United States Trade Representative (USTR) and the Finance Committee of the US Senate on the granting of a compulsory license for imatinib, a cancer medicine. This pressure specifically linked U.S. funding for “Paz Colombia,” an Obama Administration initiative in the Colombian peace process, to the granting of the compulsory license. Furthermore, the Embassy conveyed concerns from the US Senate Finance Committee that a compulsory license on imatinib would violate the intellectual property rights of Novartis, a Swiss pharmaceutical company.