Of fog and thickets: The WHO IGWG process

The WHO IGWG drafting group meeting in Salle XXIII of the Palais des Nations during this week’s World Health Assembly is charged with hammering out a consensus global strategy that would inter alia, secure

an enhanced and sustainable basis for needs-driven, essential health research and development relevant to diseases that disproportinately affect developing countries, proposing clear objectives and priorities for research and development, and estimating funding needs in in this area.

Eighteen bracketed paragraphs remain in the IGWG Global Strategy. As only Member States are permitted to attend the drafting group negotiations, it is quite difficult to gather reliable information as to what is being negotiated inside.

Last evening, the drafting group shifted from formal mode to informal mode. According to one source, this phase shift from formal to informal mode precipitated a change in room as well as the fact that representatives of the World Trade Organization (WTO) and the World Intellectual Property Organization (WIPO) not being present in the informal discussions.
As my colleague Judit Rius Sanjuan mentioned in her note much of the negotiation last night revolved around the issue of a global databases on the status of health-related patents and the issue of TRIPS plus language. The bracketed language states:

5.2.b [avoid the incorporation of TRIPS-plus measures in any trade agreements and in national legislation that may have negative impact on access to health products or treatments in developing countries] or [encourage those Member States, which so desire, when incorporating measures beyond TRIPS to take into account the impact on access to health products in light of public health priorities without prejudice to the sovereign rights of Member States]

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According to Secretariat and country sources, the provisions related to a global patent database on the status of health-related patents and TRIPS plus language were agreed to by consensus. This consensus language is expected to be made available to the public tomorrow. Outstanding issues that remain under consideration include: competition, test data protection and patentability guidelines that would promote “high quality patents and while taking into account a public health perspective.” One delegate noted that there may be a push by certain rich countries to bundle all the unresolved contentious issues contained within the IGWG global strategy into a single package. A perspicacious observer to the IGWG process has noted that the current negotiations are an exercise in “incremental debasement”.

The drafting group is currently meeting now, and a night session from 6:30 PM to 12:00 AM is expected. While remaining “open ended” the IGWG drafting group has morphed into a green room consultation. The countries (and regional economic integration organizations) present according to some sources include: Argentina, Brazil, Canada, Chile, Colombia, Venezuela, the European Commission, India, Kenya (on behalf of African Region), Norway, Slovenia,Switzerland, Thailand and the United States of America.

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