The World Trade Organization (WTO) is convening the TRIPS Council from Tuesday, 24 February 2015 to Wednesday, 25 February 2015. As mentioned in a previous piece, Norway and the United States “have submitted a written request for the inclusion of the topic, “Intellectual Property and Innovation: Women And Innovation” (Source: WTO TRIPS Council-February 2015- Norway and the United States bring gender mainstreaming to the fore-Women and Innovation, /node/2167).
On Monday, 23 February 2015, Bangladesh, on behalf of the LDC Group, submitted a Request for an Extension of the Transitional Period Under Article 66.1 of the TRIPS Agreement for Least Developed Country Members with Respect to Pharmaceutical Products and for Waivers from the Obligation of Articles 70.8 and 70.9 of the TRIPS Agreement (Source: IP/C/W/605). A key ask in this request is contained in paragraph 12 of the request:
Least developed country Members of the WTO hereby submit a duly motivated request for an extension of the transitional period (that ends on 1 January 2016) for as long as the WTO Member remains a least developed country.
In the introductory paragraphs of the submission, the LDC requests highlight the situation facing LDCs in respect of HIV and non-communicable diseases (including cancer) citing UNDP, UNAIDS, MSF and WHO sources.
2. In 2011, some 9.7 million of the 34 million people living with HIV worldwide, live in LDCs. Of the people living with HIV in LDCs, 4.6 million were eligible for antiretroviral (ARV) treatment in accordance with the 2010 World Health Organization HIV treatment guidelines, however only 2.5 million were receiving it.While the ARV treatment situation may have somewhat improved since the 2001 Declaration on TRIPS and Public Health (WT/MIN(01)/DEC/2), the need remains significantly great. There are particularly complex challenges for LDCs with respect to second line HIV treatment which is more than double the price of the first line regime, and third line HIV treatment which could be as much as 15 times the price of first line treatment.
3. The Joint United Nations Programme on HIV/AIDS (UNAIDS) has expressed concern that “without extension of the transition period, access to antiretroviral therapy and other key medicines in LDCs will face real challenges” and with “a real danger …progress that has been made to improve access to HIV-related medicines in these countries will be reversed”.
4. LDCs also bear increasing health burdens from non-communicable disease. For example, cancer incidence is expected to rise 82% from 2008 to 2030 in low-income countries (compared to 58% in upper-middle and 40% in high-income countries).
The LDC submission references the UN Human Rights Council Resolution A/HRC/23/L.10/Rev.1 of 11 June 2013 on access to medicines in the context of the right of everyone to the enjoyment of the highest attainable standard of physical and mental health which urged “States to promote access to medicines for all, including through the use, to the full, of the provisions of the Agreement on Trade-Related Aspects of Intellectual Property Rights which provide flexibility for that purpose.”
While acknowledging the impact of the 2016 extension for pharmaceutical products, the LDC submission notes that,
LDC Members of the WTO continue to face massive health challenges from communicable and non-communicable diseases. In addition to the socio-economic and financial constraints, LDCs also lack adequate technological base and local pharmaceutical manufacturing capacity. These special needs and circumstances of LDCs, and the vulnerability of LDCs confirm the need for a renewed transition period for as long as these constraints remain (Source, Paragraph 10, IP/C/W/605).
In terms of the mechanics of the extension, the LDC Group proposed the following:
11. Article 66.1 provides that the Council for TRIPS “shall, upon duly motivated request by a least developed country Member, accord extensions of this period.”12. Least developed country Members of the WTO hereby submit a duly motivated request for an extension of the transitional period (that ends on 1 January 2016) for as long as the WTO Member remains a least developed country.
13. Least developed country Members also request that the TRIPS Council recommend to the General Council a waiver for LDCs from obligations under Articles 70.8 and 70.9 of TRIPS for as long as the WTO Member remains a least developed country.
It remains to be seen if Australia, Canada, the European Union, Japan, Switzerland and the United States will accept this duly motivated request of the LDC Group, a group that represents “the poorest and weakest segment of the international community” (Source, Paragraph 1, IP/C/W/605).