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”: 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)”: 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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