TRIPS and Drugs: nothing happening

More than 6 months down the road, no country has taken advantage of the hard-fought Decision of the WTO General Council, according to this AFP story. bq. Poor countries that fought to be able to import generic prescription drugs have failed to use changes to the WTO rules on intellectual property rights (AFP via “Yahoo”:http://story.news.yahoo.com/news?tmpl=story&cid=1507&ncid=1507&e=1&u=/afp/20040307/hl_afp/wto_trade_health_aids) The brouhaha over TRIPS and drugs seemed all along to have been beat-up by the global NGOs. Almost all of the medicines on the World Health Organization list of essential drugs for fighting AIDS (for example) are out of patent and those that are still patented are offered at concessional prices to poor countries by the patent owners. It appears that the real causes of failures in public health in Africa (and elsewhere) are due less to the price of drugs than to ineffective administration and under-funding of basic health infrastructure. The purpose of the “WTO Decision(link to text of the Council Decision on the WTO site)”:http://www.wto.org/english/tratop_e/trips_e/implem_para6_e.htm was to permit the export of compulsorily licensed patented medicines to countries that do not have their own capacity to manufacture the drugs. The decision was needed because Article 31(f) of the TRIPS Agreement says products made under compulsory licenses must be “predominantly for the supply of the domestic market”. That is, the TRIPS agreement appeared to prevent a country such as India that may have compulsorily licensed a patented medicine for local manufacture (at low prices) from exporting the medicine to e.g. Rwanda where drugs are in short supply. The decision requires countries exporting compulsorily licensed drugs to ensure that the remuneration for the compulsory license—which they are in any case obliged to offer to the patent holder—covers the export use. It also requires that they nominate the products exported, distinguishing them e.g. by special packaging to minimize the risk of their ‘leakage’ into commercial markets. The importing country must also certify its need, although Least Developed Countries (much of Africa) are deemed to lack sufficient drug processing capacity of their own.

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