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Next big fight is on generic pharmaceuticals

By Henry Zakumumpa

After winning extension on enforcement of Intellectual Property Rights, LDCs are targeting pharmaceuticals 2016 deadline

After intensely heated and acrimonious negotiations, The World Trade Organization (WTO) on  June 11 agreed an eight-year deadline extension on enforcement of  trade marks, patents and copyrights  which are largely held by western companies and individuals, collectively known as Intellectual Property Rights (IPRs) in the world’s poorest countries.

Under a 1995 WTO treaty known as the Trade Related aspects of Intellectual Property Rights (TRIPS), a  2013  ‘transition’ deadline was set for enforcement of  intellectual property rights ranging from educational books, pharmaceutical products to high-yield agricultural seeds. Intellectual property law protects the rights of innovators and inventors from copyright infringement.

Most patents and copyrights are held by western companies and individuals, including in poor countries where the overwhelming majority of patents and applications are held and filed by foreign entities.

The 2013 deadline meant that trademarks, patents and copyrights were to be enforced in poor countries and  any breach would be punishable by law  especially in countries like Uganda which have recently reformed their laws to recognise intellectual property rights.

The latest WTO deadline extension goes as far as July 2021 and provides for a further deadline extension application.

In November 2012, Haiti had, on behalf of poor countries designated as ‘Least Developed Countries’ (LDCs), formally sought an unlimited extension whereby intellectual property rights enforcement would be suspended for as long as a country was designated as an LDC. The negotiations were long drawn-out and took several months.

The Ugandan NGO, Centre for Health, Human Rights and Development (CEHURD), in a joint-statement with Health GAP , applauded the extension as ‘a partial victory’.

They argued that the WTO decision will enable ‘’access to more affordable medicines and medical technologies, educational resources, agricultural inputs, and green and climate control technologies.

’’ adding that ‘’ The US and Europe had pushed these countries to implement the standards of patent protection, copyrights, trademarks, and other forms of intellectual property in the next few years that today’s rich countries refused to implement while they were focused on development’’.

The WTO in informal negotiations was willing to grant a TRIPS deadline extension of 5-7.5 years which LDCs opposed as too short.

Moses Mulumba, a director at the Center for Health, Human Rights and Development (CEHURD) said the WTO offer was unacceptable as the TRIPS Agreement states that upon a duly motivated request, the TRIPS council shall grant an extension.

LDCs, a category to which Uganda belongs, are justified in seeking an unlimited extension because the suggested 5-7years would not have given them adequate time to overcome capacity constraints to develop a viable and competitive technological base.

The deadline for enforcement of the even more critical pharmaceutical patents is not until 2016. It is understood that LDCs are planning a similar negotiations, in this regard, starting next year.

Prof. Brook Baker of Health GAP says LDCs and their allies will have to begin early to win an even better extension of the pharmaceutical product transition period. Here too, Baker says, the LDCs should insist on an unconditional extension (like the one they won in 2002) and it should last as long as a WTO member is an LDC.

The fight against HIV, tuberculosis and malaria, and the simultaneous fights against neglected tropical diseases and non-communicable diseases, depend on affordable access to generic medicines of assured quality, he says.

Mulumba adds that as a region with overwhelming capacity constraints in local pharmaceutical production and  80% of the population depending on generic drugs, this offer to extend the transition time illuminates how much more effort civil society needs to put in asking for an indefinite extension of pharmaceutical product patents come 2016.

It is very evident, he says, that civil society in the third world has a voice in the global agenda on trade in intellectual property rights.

“We are glad to see that our governments stood up to pressure, and fought for the right to pro-development policies,” added Kwagala, Policy Advocacy manager for CEHURD.

“An extension of 8 years with a possibility of a further extension come 2021 is important. This will position our region to benefit from flexible intellectual property policies to be able to build a viable technology base. It is also opportune timing to focus on building the capacity of our local industries,” she says.

The writer is a PhD candidate at the School of Public Health Makerere University

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