AFRO-NETS> World Health Assembly puts health over profit

[Claudio Schuftan <aviva@netnam.vn>]

World Health Assembly puts health over profit
---------------------------------------------
 
The World Health Assembly, the policy-framing body that gives guid-
ance to WHO on the views of member states and sets global health pol-
icy, has voted to support a resolution affirming that public health 
interests should remain paramount when framing policy on pharmaceuti-
cals. 
 
The implications of the resolution will alarm United States trade 
representatives, who have been fighting a rearguard action in the 
World Trade Organisation to defend the rights of pharmaceutical pat-
ent holders against compulsory licensing on public health grounds. At 
the November 2001 Doha WTO summit, it was agreed that the TRIPS 
agreement on intellectual property "can and should be interpreted and 
implemented in a manner supportive of WTO members' right to protect 
public health and, in particular, to promote access to medicines for 
all." 
 
A major sticking point at Doha was the question of whether generic 
producers in countries like India should be allowed to export to 
countries with little or no manufacturing capacity on public health 
grounds, the so-called Paragraph 6 issue. Developing countries were 
promised a solution to this issue by the end of 2002, but it remains 
unresolved. The US has tried to limit the list of diseases that would 
eligible for such an exemption on public health grounds, and even 
though every member of the WTO voted against the US proposal, the 
European Union Trade Representative Pascal Lamy has subsequently pro-
posed a similarly edited list as a `compromise`. In the meantime, 
compulsory licensing for diseases that everyone agrees on - HIV, ma-
laria, TB and a handful of tropical diseases - remains blocked. 
 
The resolution adopted by the World Health Assembly, despite vigorous 
US opposition to any WHO involvement in intellectual property issues, 
states that: 
 
Public health interests are paramount in both pharmaceutical and 
health policies Member states should consider, whenever necessary, 
adapting national legislation in order to use to the full the flexi-
bilities contained in TRIPS WHO should support the exchange and 
transfer of technology WHO should produce an analysis of methods by 
which research and development of medicines for the developing world 
can be stimulated and financed, to report by January 2005 The resolu-
tion did not instruct WHO to give assistance to countries in identi-
fying how to draft laws that would allow greater flexibility on 
TRIPS, and did not instruct WHO to intervene wherever necessary in 
trade negotiations that might restrict access to essential medicines. 
 
However, a recent Medecins sans Frontieres report, Drug Patents Under 
the Spotlight, suggests that much work needs to be done to inform de-
veloping countries of their current options under the existing intel-
lectual property regime. Although the TRIPS agreement has been por-
trayed as restrictive, the MSF report points out that countries can 
still decide what sort of inventions they will grant patents for. In 
countries without current patent provisions for pharmaceuticals, the 
framing of patent regulations could have a huge impact on the price 
of medicines and the ability of countries to issue compulsory li-
censes.
 
 The subject of a patent must be new - the key flexibility on this 
issue is whether novelty is defined locally or globally. If a novel 
invention is defined globally, the Paris Convention for the Protec-
tion of Industrial Property gives an inventor 12 months to file pat-
ents worldwide before the novelty of an invention is considered to 
have expired. Patent offices could be more strict about applying this 
provision. 
 
The inventiveness of the innovation should also be assessed - is it 
impossible for an expert to have anticipated this invention? European 
patent law states that "an invention shall be considered as involving 
an inventive step if, having regard to the state of the art, it is 
not obvious to a person skilled in the art." 
 
MSF argues that anyone with a modicum of knowledge about HIV treat-
ment could anticipate that a fixed dose combination of already known 
antiretrovirals is possible. 
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