On 9 November 2016, the World Trade Organization’s (WTO) TRIPS Council held discussions on the United Nations Secretary-General’s High-Level Panel Report on Access to Medicines (UN HLP). These timely WTO discussions on the UN HLP germinated from a 27 October 2016 request by Brazil, China, India and South Africa requesting the WTO Secretariat to place a dedicated agenda item for consideration at the 8-9 November 2016 session of the TRIPS Council entitled “the United Nations Secretary-General’s High-Level Panel Report on Access to Medicines.”
According to informed sources, 15 WTO members (including Brazil, China, India, South Africa, the European Union, Japan, Switzerland and the United States of America) and 5 intergovernmental organizations (including WTO, the World Health Organization and the United Nations Conference on Trade and Development) delivered statements on the UN HLP report. During the deliberations, according to informed sources, the TRIPS Council agreed to continue discussions on the UN HLP at the first meeting of the TRIPS Council in 2017.
Contained below is the text of Brazil’s intervention on the UN HLP.
THE UNITED NATION SECRETARY GENERAL’S HIGH LEVEL PANEL REPORT ON ACCESS TO MEDICINES
“Thank you Chair,
Brazil is pleased to be a co-sponsor, alongside China, India and South Africa of the agenda item on the United Nations Secretary General’s High Level Panel report on access to medicines.
The High Level Panel on access to Medicines was established to implement one of the recommendations of the Global Commission on the HIV and the law. This Commission, as many will remember, was comprised of eminent authorities and chaired by former Brazilian President Fernando Henrique Cardoso.
On 19 November 2015, United Nations Secretary General Ban Ki-moon announced the creation of the High-Level Panel on Innovation and Access to Health Technologies. In outlining its mandate, the Secretary General guided the panelists to “review and assess 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.”
This new High Level Panel was co-chaired by the former President of the Swiss Confederation, Ruth Dreifuss, and by the former President of Botswana, Festus Mogae. Its final report was released last September. Among its recommendations, some are directly related to the TRIPS Agreement. One of these calls for WTO members to commit, at the highest political levels, to respect the letter and the spirit of the Doha Declaration on TRIPS and Public Health, refraining from any action that will limit their implementation and use in order to promote access to health technologies. More specifically, it recommends:
1. WTO Members should make full use of the policy space available in Article 27 of the TRIPS Agreement by adopting and applying rigorous definitions of invention and patentability that curtail the evergreening to ensure that patents are only awarded when genuine innovation has occurred.
2. Enhanced cooperation among the United Nations Conference on Trade and Development (UNCTAD), the United Nations Development Programme (UNDP), the World Health Organization (WHO), the World Intellectual Property Organization (WIPO) and the World Trade Organization (WTO) and with other relevant bodies with the requisite expertise to support governments to apply public health-sensitive patentability criteria.
3. It also recommends these multilateral organizations to strengthen the capacity of patent examiners at both national and regional levels to apply rigorous public health sensitive standards of patentability taking into account public health needs.
4. Governments should adopt and implement legislation that facilitates the issuance of compulsory licenses. Such legislation must be designed to effectuate quick, fair, predictable and implementable compulsory licenses for legitimate public health needs, and particularly with regards to essential medicines. The use of compulsory licensing must be based on the provisions found in the Doha Declaration and the grounds for the issuance of compulsory licenses left to the discretion of governments.
5. Governments and the private sector must refrain from explicit or implicit threats, tactics or strategies that undermine the right of WTO Members to use TRIPS flexibilities.
Brazil has a strong commitment to the improvement of public health in our country and in our region. To increase the bargaining power of governments in the acquisition of essential medicines, Brazil and other countries have established, in 2015, a regional system of procurement for these life saving goods. This arrangement, with the participation of most South American countries, is one sort of innovative mechanism aimed at helping countries to cope with high prices of pharmaceuticals.
Engaging in the discussion of recommendations by the High Level Panel might allow members to consider different aspects of the relationship between access to medicines and the Patent System. Brazil is convinced that a balanced and effective IP system would go a long way toward facilitating access to essential medicines without in any way infringing on market principles.
We all know access to medicines is a challenge for most countries, whether least developed, developing or developed. We present these views in a spirit of dialogue, convinced that they are in the interest of everyone, without exception, and encourage the whole Membership to work constructively towards achieving the goal of universal access to medicines.
Brazil understands it is important for the TRIPS Council to pay due attention to the issues and recommendations raised by the UN Secretary General’s High Level Panel. We would be most interested in the continuation of the discussion in the next TRIPS Council Session.