PRIVATE PATENTS AND PUBLIC HEALTH

PRIVATE PATENTS AND PUBLIC HEALTH
WHO placed on public health needs over trade interests was perceived
as a threat to the commercial sector of the industrialised world. In
particular, a greater role for the WHO in issues related to TRIPS created
considerable concern within the pharmaceutical industry, which
lobbied hard against it.
A draft resolution discussed at the 1998 WHO Executive Board, the
governing body of the WHO responsible for preparing the annual WHA,
called on WHO member countries to ensure that public health, rather
than commercial interests, would have primacy in pharmaceutical and
health policies. The resolution further referred to TRIPS and asked the
WHO director general to analyse the effects of new trade agreements on
health and to develop measures to counter these effects in a ‘Revised Drug
Strategy’. In 1998, in response to this and in reference to “considerable
concern among the pharmaceutical industry,” the European director
general for trade’s position was that “no priority should be given to health
over intellectual property considerations.” 35 The WHO Executive Board
established an ad-hoc group chaired by France to prepare for the
discussions on the Revised Drug Strategy at the WHA in 1999.
The issue of trade agreements with regard to IP and access to medicines
had been put on the agenda of the WHO and was there to stay. The
Executive Board ad-hoc group organised a five-day meeting, including a
one-day hearing with interested parties. It concluded its work with a
proposed resolution that was sent to the 52nd WHA. 36
The resolution was adopted by the WHA in May 1999 and strengthened
the WHO’s role in IP issues. The text no longer called for the “primacy of
health over trade,” but noted the importance of “ensuring that public
health interests are paramount in pharmaceutical and health policies.” 37
This nevertheless put health advocates at the table of trade negotiations, as
subsequent developments at the WTO TRIPS Council and the Doha WTO
ministerial conference would show. The resolution also urged countries to
look into the options they have under current trade rules to safeguard
access to essential medicines, a clear reference to the flexibilities available
under the TRIPS Agreement. These flexibilities include compulsory
licensing, which allows governments to overcome patents and produce,
import, export, and market generic versions of a patented drug (see Chapter
4, “TRIPS and its built-in flexibility”). Most importantly, the assembly
requested that the WHO assess the health implications of trade agreements,
which was understood to mean the WTO TRIPS Agreement, with a view to
assisting countries in mitigating the negative effects of this agreement.
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