MSF Intervention at the 17th Session of WIPO Standing Committee on Law of Patents

Speaker: Aziz Rehman, IP Policy Advisor, MSF Access Campaign

Thanks Mr. Chairman.

I am speaking on behalf of Médecins Sans Frontières International. MSF is a medical humanitarian organisation that works in over 80 countries around the world.

We are interested in patents and public health debate as we found ourselves increasingly confronted in the field with problems of access to essential medicines. Intellectual property and specifically patents affect prices and availability of desperately needed medicines. We think that referring overwhelmingly to most of the off-patents drugs on essential medicines list in the context of patents and access to medicines debate is simplistic as cost effectiveness is still a key criteria used by the WHO to develop its essential medicines list.

The ability of generic manufacturers to produce affordable quality medicines will be significantly compromised with the full implementation of the TRIPS Agreement in developing countries. From public health and access to medicines perspective, it is crucial to maintain and escalate the current level of generic production in developing countries. The flexibilities and safeguard provisions of the TRIPS Agreement can play a significant role in this regard. In MSF, we benefited – directly or indirectly – from various flexibilities of the TRIPS Agreement and our experience shows that it is crucial to preserve such flexibilities. In Kenya, MSF has used parallel import provisions in Kenyan law to import generic ARVs from India. We also witnessed the benefit of stricter patentability criteria set out in Section 3 (d) of Indian patent law which has been successfully used to oppose evergreening patents.

We are, however, very much concerned about the emergence of the so called TRIPS-plus trends which are undermining the safeguards allowed under the TRIPS Agreement. The proliferation of free trade agreements and the adoption of ACTA threaten the future of access to medicines in the developing world.

Of central concern in the proposed India-EU FTA are provisions regarding IP enforcement and border measures which go far beyond what is required under the TRIPS Agreement. Furthermore, the proposed Trans-Pacific Partnership (TPP) agreement has the potential to greatly diminish access to affordable medicines for millions of people in parts of the developing world.

In this context, the role of WIPO is extremely crucial to introduce and maintain a balanced patent system which essentially takes into account the developmental and humanitarian consequences of a patent regime. In its advice and technical assistance to member states, WIPO should proactively refer to exceptions and flexibilities allowed under different international treaties. In this regard, I would specifically refer to the findings and recommendations of the External Review of WIPO Technical Assistance in the Area of Cooperation for Development which categorically highlights the need that “WIPO should present developing countries the range of options and flexibilities available in international laws. It should also explain and/or share experiences of how different options may hinder or advance their pursuit of development targets.”

Towards the end, we once again support the joint proposal of African Group and the Development Agenda Group. WIPO member states should seriously consider the proposal to carry out a series of studies on the use of flexibilities. Maintaining a patent status database is important for treatment providers such as MSF because it would enable us to identify the options to purchase and import medicines.

Thanks