IP Provisions in Trans-Pacific Partnership Negotiations Raise Public Health Concerns

23 March 2011

Ongoing trade negotiations involving the United States and eight other Pacific Rim nations have come under increasing scrutiny for the intellectual property provisions being discussed, amidst concerns that they could lead to higher drug prices, harming public health and access to medicines in developing countries.

The objective of the TPP is to establish a free trade agreement among the United States, Australia, Brunei, Chile, Malaysia, New Zealand, Peru, Singapore, and Vietnam. Five rounds of negotiations have taken place since March 2010; still in its early stages, the TPP has been the subject of growing global interest.

The intellectual property provisions of the prospective accord has come under scrutiny since February, when Knowledge Ecology International (KEI), a Washington-based organisation, posted a leaked copy of the IP chapter of the draft negotiating text on its website.

A number of public interest advocacy groups and academics, including KEI, have appealed to a United Nations human rights mechanism to intervene in the Trans-Pacific Partnership Agreement (TPP) talks. They submitted a petition to the UN special rapporteur on the right to health, Anand Grover, detailing their concerns and asking him to weigh in on the negotiations. According to the Office of the UN High Commissioner for Human Rights, the special rapporteurs have a UN mandate to "examine, monitor, advise and publicly report" on human rights situations linked to particular topics or countries.

Public health groups have voiced fears that, as it currently stands, the TPP contains stricter rules than those stipulated by the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), and could jeopardise  the use of public health related flexibilities aimed at promoting access to medicines in developing countries. Examples of ‘TRIPS-plus' measures in the draft include the availability of patents for new uses, provisions relating to patent linkage and data exclusivity which would strengthen rights of drug patent-holders at the expense of generic competition. Notably, a draft article would prohibit parties to the agreement from establishing procedures allowing for patents to be challenged before they are granted. Such ‘pre-grant opposition' procedures have been used in a number of countries, including India, to challenge patent applications of questionable merit.

In their letter to Grover, the signatories*, which included HIV/AIDS patients' organisations, public health advocacy groups, and law professors, pointed to the role of the United States as a key player in the FTA and the main promoter of the new obligations on intellectual property. They argued that the TPP allows developed country members of the agreement to exert unequal power over developing country members, and would compel the latter to adopt measures of patent protection that may hinder access to medicine for all.

Washington remains satisfied that the progress made in the TPP negotiations represents US interests and those of other participating countries. "TPP countries made further progress in developing the agreement's legal texts, which will spell out the rights and obligations each country will take on and that will cover all aspects of trade and investment relationships," the US trade representative's office said in a statement following the last round of talks in Santiago, Chile in February.

According to the public advocacy groups, the TPP negotiations and text have been kept secret to an extent that goes well beyond what is customary for trade negotiations, preventing citizens of participating countries from making informed decisions about the negotiations. They warn that "lack of access to information is quite unequal, and some corporate interests have special access to information about the negotiations that is not available to the general public."

In a related development, three UN agencies last week called on developing countries to utilise the flexibilities within the TRIPS agreement to expand access to medicines, since these could be the key to striking an optimal balance between IP protection and development objectives. The , World Health Organization, United Nations Development Programmes, and UNAIDS added that "high-income governments should ensure that free trade agreements with middle-or low income countries comply with the principles of the Doha Declaration," in a reference to the 2001 agreement in which WTO members reaffirmed that the TRIPS Agreement "does not and should not prevent members from taking measures to protect public health."

The next rounds of TPP negotiations are scheduled for 28 March - 2 April in Singapore and 20-24 June in Vietnam.

*Knowledge Ecology International; Positive Malaysian Treatment Access & Advocacy Group (MTAAG+); Latin American and Caribbean(LAC)-Global Alliance for Access to Medicines; Acción Internacional por la Salud (HAI) Peru; Australian Fair Trade and Investment Network; Acción Internacional por la Salud (HAI) Ecuador; IFARMA Foundation - Colombia;  Mision Salud, Colombia; Peruvian Network for Fair Globalisation - RedGE; Health Action International (HAI) Europe; Acción Internacional por la Salud (HAI) Latin America and the Caribbean; Alberto Cerda Silva, Professor of Law, University of Chile Law School; Allen Black Jr., Adjunct Professor of Law, University of Pittsburgh; Jane Kelsey, Professor of Law, University of Auckland.

ICTSD reporting; "Using TRIPS flexibilities to improve access to HIV treatment," UNAIDS/WHO/UNDP, 15 March 2011.

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