When governments have to weigh public health against IP issues, LDCs and developing countries really have no choice but to plug for the former
The recent TRIPS Council meeting (June 9-10) once again saw a confrontation between least-developed countries (LDCs) and developed countries on two major issues. The first was the extension of a waiver allowing LDCs to forgo enforcement of IPRs on pharmaceutical products until their economies are more stable. While most developed countries, led by the US and Switzerland, continue to argue against this extension, Norway, a high-income member of the WTO, has supported this LDC Group request acknowledging that “as long as a member is an LDC, it will have institutional and financial constraints, as well as lack of adequate technological base and pharmaceutical manufacturing capacity and will therefore need flexibility and maximum policy space to enable it to confront its health challenges with effective and affordable strategies.”
The second issue debated at the meeting was the LDC Group’s stance that non-violation complaints (NVCs) should not be allowed at the WTO Dispute Settlement Body (DSB). According to the WTO’s backgrounder on NVCs, such complaints arise when governments complain to the WTO DSB claiming that ‘it has been deprived of an expected benefit because of another government’s action, or because of any other situation that exists.’
Industry observers point out that the US has threatened to take India to the WTO DSB arguing that sections of India’s patent law, like Section 3(d), though not violating any WTO agreements, subvert the principles of protection of IPRs, which is the obligation of every country. But the reality is that when governments of LDCs and developing countries have to weigh public health against IP issues, they really have no choice but to plug for the former.
India is one of 17 nations which co-sponsored a paper introduced by Brazil which basically made the case that NVCs go against the spirit of TRIPS. India’s strongly worded statement asks important questions regarding the circumstances under which they will be used “to suppress members sovereign policy space”, the limits on NVCs and the policy measures that will come under its scanner.
Informal discussions on both issues will continue till the next TRIPS Council meeting scheduled for October 15-16 but will the LDCs and developing countries be able to stand their ground in the face of rising litigation cost?
The irony is that developed nations advocate NVCs to “discourage members from engaging in ‘creative legislative activity’ that would allow them to get around their TRIPs commitment”, as the WTO backgrounder on NVCs puts it. With such good intentions on both sides, why does a resolution still see so far away?