On Thursday, 11 February 2016, five groups including Knowledge Ecology International (KEI), Oxfam, Stop AIDS, Third World Network (TWN) and Treatment Action Campaign (TAC) sent a letter to Dr. Francis Gurry, Director-General of the World Intellectual Property Organization (WIPO) highlighting our concerns with statements expressed by WIPO relating to the United Nations Secretary General’s High-Level Panel on Access to Medicines (HLP). To date, we have yet to hear any formal response from WIPO. The letter was featured in a piece by Intellectual Property Watch (IP-Watch) on 17 February 2016 entitled, Questions Over WIPO Statements At UN Secretary-General’s Panel On Access To Medicines.
The civil society letter reminded WIPO of the mandate of the UN HLP, noting that United Nations Secretary-General Ban Ki-moon convened the HLP with objective of reviewing and assessing “proposals and recommend solutions for remedying the policy incoherence between the justifiable rights of inventors, international human rights law, trade rules and public health in the context of health technologies. (http://www.unsgaccessmeds.org/theprocess, Accessed 9 February 2016).
The letter recounted the following data points.
While WIPO is pleased to be included in the Secretary General’s initiative, we are sensitive to the prima facie assumption in the HLP’s mandate that there is a policy incoherence between using intellectual property laws and regulations to encourage innovation and the imperative of delivering medicines and other health services to those in need.
On 4 February 2016, at the mission briefing in New York, Lucinda Longcroft (Head of New York Office, WIPO) reiterated the same message,
WIPO is sensitive to any assumption in the HLP mandate that there is a policy incoherence between using IP laws and regulations to encourage innovation and the imperative of delivering medicine and health services to those in need.
At the mission briefings, WIPO noted that “coherence exists in the recognition that without productive innovation, there is nothing to have access to.”
The NGO letter asked if WIPO was operating in a policy vacuum noting the passage of the Doha Declaration on the TRIPS Agreement and Public Health, the WHO Global Strategy and Plan of Action on Public Health, Intellectual Property and Public Health, the establishment of the WIPO Development Agenda and recent discussions at WIPO’s Standing Committee on the Law of Patents (SCP) on Patents and Health.
In addition, we raised the following points.
Policy Incoherence Is WIPO operating in a vacuum?
In the context of the UN HLP’s mandate to remedy the “policy incoherence between the justifiable rights of inventors, international human rights law, trade rules and public health in the context of health technologies”, it is remarkable and profoundly disturbing that in 2016 WIPO would express reservations that the International Bureau remained “sensitive to any assumption in the HLP mandate” that there is a policy incoherence between international human rights law and trade rules.
The remarks made by the representatives of WIPO are based on erroneous assumptions. They imply that IP protection especially patents and the grant of monopolies are the critical mechanism to support product development, and that tradeoffs between innovation and access are both necessary and acceptable. However, while under the current system patents play a role in innovation, the costs are high, and equating patent protection with innovation both overstates the importance of patent monopolies and ignores the possibilities of reforms that eliminate the tradeoffs between innovation and access. Further, the views expressed by WIPO representatives that patents as a tool for incentivizing R&D investments ignores well known evidence regarding the market failure in the funding of basic science, unbiased comparative clinical trials, neglected diseases, antibiotics, rare diseases, and global health threats such as Ebola, unwanted rationing of medicines, excessive prices and unequal access, further illustrate the limitation of the patent system as an instrument for incentivizing R&D investment.
We asked the International Bureau to clarify the following questions.
Are the views expressed by WIPO officials (at the mission briefings in Geneva and New York) a reflection of the WIPO secretariat’s official position? If so, how does this comport with the WIPO Development Agenda adopted by the WIPO General Assembly in 2007 and the robust (and unresolved) discussions on patents and health in WIPO’s Standing Committee on the Law of Patents (SCP)?
We respectfully ask you to clarify the International Bureau’s views on this matter, in relation to the work of the United Nations SecretaryGeneral’s HighLevel Panel on Access to Medicines.