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A choice between patents and patients

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TRIPS and access to medicines

Every year, 14 million people in developing countries unnecessarily die of poverty-related and infectious diseases, such as malaria, diarrhoea, tuberculosis and HIV/AIDS. The required medicines often exist, but the patients in developing countries simply cannot afford them, due to the patents on these medicines.

The EU and TRIPS

Since January 2005, all WTO members (except the Least Developed Countries (LDCs), which are allowed to wait until 2016) are obliged to adapt their national patent legislation to the minimum standards of the Trade Agreement on Trade Related Aspects of Intellectual Property (TRIPS) [1], which faces high standards of patent protection. This means companies have a monopoly position on the market with their patented medicines, which keeps prices of medicines exceptionally high. 
The EU is now negotiating free trade agreements (FTA’s) with several countries in which they propose Intellectual Property provisions in order to protect the pharmaceutical industry that even go beyond TRIPS, which endangers the access to medicines in many countries.

Problem 1: losing trips flexibilities

‘TRIPS flexibilities’, enshrined in the Doha Declaration of 2001, allowed countries to protect public health with some policy space. Countries are hereby allowed to define standards of patents and to use compulsory licences, meaning that countries can use generic versions of patented medicines in order ‘to promote access to medicines for all’ [2].
However, in the FTA’s the EU is negotiating Intellectual Property (IP) provisions that counter those flexibilities, reducing the availability of generic medicines.

Problem 2: from TRIPS to TRIPS-plus

The TRIPS agreement involves minimum standards for IP rights and until 2006 the EU did not actively seek to strengthen international intellectual-property standards outside of the TRIPS agreement. In the last few years however, the EU has been pursuing TRIPS plus commitments – stricter conditions in IP laws than TRIPS requires – of third countries, including developing countries. Among its trade goals the European Commission now explicitly states that the EU should seek to strengthen IPR provisions in future bilateral agreements [3].
An example of a TRIPS-plus regulation is data-exclusivity. This means that even when a product is not patented, the company has the exclusive rights of the test data, which means that generic producers have to repeat the clinical trials or wait years for the data to become available, keeping the prices of medicines artificially high [4].

Problem 3: The right to destroy medicines?

Currently, the EU is negotiating Free Trade Agreements (FTA’s) with several countries, one of them concerns India. India is a major producer of generic medicines, but the FTA could lead to delaying or destroying whole batches of generic medicines on their way to developing countries only on the suspicion of IP infringement.
On the 6th of March 2013, the EU started negotiations with Thailand for an FTA. NGO’s are afraid the EU will push for the same TRIPS-plus regulations as in the FTA with India [5][6].

Problem 4: Depriving governments of protecting public health

The investment chapter of the FTA with India includes a provision that gives the right to companies to sue governments when they reduce the profits of the companies by establishing rules that protect public health, for example by controlling medicine prices or increasing the access to medicines by overriding patents [7].

Unfair on multiple fronts

The above clearly illustrates how the EU is protecting its pharmaceutical companies at the expenses of people in developing countries who are not able to pay for the medicines they need. This while the EU has committed to the Principle of Policy Coherence for Development as enshrined in Article 208 of the Treaty of Lisbon stating that in all other fields of policy making the implications for development policy should be taken into account. This commitment is reinforced by the Council Conclusion of May 2012. Apart of its development policy, the EU has committed to the MDGs. MDG 4 states that the mortality rate among children under five must be reduced by two third and MDG 6 states that the spread of HIV/AIDS, malaria and other major diseases must to be stopped before 2015. Therefore we can clearly speak of an incoherence here between the EU’s development and trade policy.

for the background paper on TRIPs click here 

Heading image. Made by: Aloísio Costa Latgé. Source: pixabay.com, 2016.