Doha+10: MSF asks, what’s next for TRIPS and health?

MSF organised a conference entitled, “Revising TRIPS for Public Health: Can TRIPS be reformed to meet public health needs” on 21 November. The event gathered many of the policymakers, academics and stakeholders integral to the Doha Declaration to discuss and debate the way ahead in the pursuit of access to medicines for all.

“We are concerned about the future,” said Michelle Childs, director of policy and advocacy for the MSF Access Campaign. “The reality is that we and others have relied on generic competition in a pre-TRIPS world in order to treat and scale up, particularly in HIV, and that is a warning of things to come because we are seeing in relation to HIV that many of the new medicines are under patent.”

Some of the key challenges evoked during the panel discussion included protecting and building on the gains from Doha such as country implementation of intellectual property and licensing flexibilities under TRIPS and extending the transitional period for least developed countries on medicines patent protection implementation beyond 2016. Another area of debate was on how best to ensure a sustainable system for both innovation and access to medicines.

The Next Big Idea

In this context, MSF launched an “Ideas Contest” on if and how TRIPS could be revised in order to better meet public health needs. Of the 30 entries received, three winners were selected by a blind jury including Fred Abbott, professor at Florida State University College of Law and panellist; Tenu Avafia, policy specialist on intellectual property at the United Nations Development Programme; Michelle Childs, Carlos Correa, special advisor on trade and IP at the South Centre; Susan Sell, professor at George Washington University and panellist.

All of the winners answered MSF’s question in the affirmative and presented their ideas for reform during the MSF event. Constance Georgina Khaendi Walyro, of the Citron Wood Foundation, a development organisation based out of Kenya, put international human rights treaties at the centre of her proposal. “TRIPS should be amended to ensure that it primarily and intentionally promotes and protects the right to health and remains fully compliant with all national and regional public health promoting protocols and conventions.”

Dr Ruben Abete, secretary general of the Latin American Association of the Pharmaceutical Industry (ALIFAR) presented his association’s winning reform idea. ALIFAR suggested an Automatic License System (ALS) for prescription medicines in developing and least developed countries. “The ALS allows exploiting the patented product or process related to a prescription drug by paying a reasonable royalty.” The system is based on a formula where developing and least-developed countries participate in financing the R&D costs required in the development of new medicines.

Elements of Walyro and ALIFAR’s reform suggestions were also found in the proposal presented by Dr Suerie Moon, from the Harvard School of Public Health and the Kennedy School of Government. Moon also put human rights as a “central driving rationale for the TRIPS agreement” and made specific text suggestions of how TRIPS could be amended to incorporate such language. Also in pursuit of a “sustainable mechanism for ensuring that public health and access to medicines come first,” she suggested “excluding essential medicines from patentability.” Although it was not the central focus of Moon’s proposal, she also supported a political agreement in which all member states would contribute to R&D.

Government Perspectives

In an interview following the event, Francisco Cannabrava, head of Mercosur (Southern Cone Common Market) negotiations, said that he found ALIFAR’s idea of particular interest, “This is an idea that I could see putting forward in negotiations.” The Brazilian diplomat was posted to Brazil’s mission to the WTO TRIPS Council that negotiated the Doha Declaration on Public Health. He spoke on the panel session entitled, “Knowing what I know now, would I have agreed to this deal? What was Doha about and has it delivered?”

In a short answer to the question, Cannabrava said during his intervention, “The declaration has delivered. Yes. But, had you asked me the same question regarding TRIPS as a whole, the answer would probably be no.” Going forward, he emphasised the importance of developing countries’ role in putting the Doha Declaration to use. “The declaration alone will not deliver any results by itself if WTO members do not make use of it in their legislation and in any other situation that they feel the need to.”

During the same panel session, Buba Mairgari of the permanent mission of Nigeria cited commercial and political pressure as issues hindering developing countries from taking advantage of TRIPS flexibilities. He also mentioned that it is critical to find new access solutions for least developed countries as the transitional “window” to acquire generic medicines under TRIPS comes to a close. For the future, Mairgari said, “The only way out that I think is workable for African countries is a voluntary licence as opposed to a compulsory licence… Whereby you can negotiate favourable terms with those companies, I think that it will go a long way in helping.”

During her presentation, Karin Ferriter of the US mission to the WTO highlighted the importance of the protection and enforcement of intellectual property, saying that is an essential part of the R&D process as well as ensuring that medicines on the market are safe and effective. In terms of the future of innovation and access to medicines, Ferriter said that wider national and international action is necessary and pointed to a study sponsored by the International Federation of Pharmaceutical Manufacturers and Associations, which identified several factors impacting these areas. It showed that political will has an important role as well as overcoming stigma, international funding, negotiations and procurement. Compulsory licensing was shown as less important in this study than political will in terms of innovation and access, she said.

Redefining R&D Incentive

Beyond the winners of MSF’s “Ideas Contest”, a number of panellists evoked the question how to finance the development of new medicines in the future. During the last panel session, James Love, director of Knowledge Ecology International (KEI), repeated a message that he delivered in a KEI event last week (IPW, Public Health, 21 November 2011). “The sustainability of access at the end of the day is going to come back to the issue how you finance R&D,” he said. Love argued that it is essential to de-link the prices of medicines and the development of new medicines in order to fulfil “the promise of Doha” and access to medicines for all.

He applauded progress made on the issue by the WHO’s Consultative Expert Working Group on Research and Development: Financing and Coordination (CEWG) which met 16-19 November. The working group, mandated to “examine R&D financing and coordination proposals for diseases that principally affect developing countries,” announced its recommendation for a binding convention for R&D related to diseases affecting developing countries at an open briefing 18 November.

By Rachel Marusak Hermann

Intellectual Property Watch

http://www.ip-watch.org/

http://www.ip-watch.org/weblog/2011/11/22/doha10-msf-asks-what%E2%80%99s-next-for-trips-and-health/