THE growing interest in the implementation of the Doha Declaration by those in health, trade and intellectual property policy circles was evident from the large turnout at a conference in Geneva in March 2002. Médecins Sans Frontières, Consumer Project on Technology, Health Action International, and Oxfam jointly organized this one-day meeting on "Implementation of the Doha Declaration on the TRIPS Agreement and Public Health: Technical Assistance - How to get it Right." Some 175 delegates attended from national and regional patent offices, the World Trade Organization, (WTO) the World Intellectual Property Organization (WIPO), WHO and other UN agencies, academia, industry, donors and NGOs.

The event came immediately after WIPO conference on the international patent system, at which access to medicines and the appropriateness of having one uniform intellectual property model arose. These issues are at the forefront of the international health agenda following the Doha Declaration, made the November 2001 WTO Ministerial Conference (see Monitor 30). The Declaration strongly affirmed that the WTO Agreement on Trade-Related Aspects Intellectual Property Rights (TRIPS) "can and should be interpreted and implemented in a manner supportive WTO Members' right to protect public health and, in particular, to promote access to medicines for all".

As this was the first major international gathering of concerned countries and NGOs since the Doha Ministerial meeting, many participants were eager to make progress towards implementing the Declaration. There was also a desire to assess what role WIPO, as the UN body charged with developing intellectual property systems world wide, could play in the process. Major conference themes included the nature of WIPO's technical assistance to low-income countries, the elements necessary for appropriate technical assistance, the 'production-for-export' question, and putting compulsory licensing into practice.

Making technical assistance meaningful

Some participants voiced concerns that WIPO's mandate to strengthen intellectual property protection world wide may not be consistent with the need for differing levels of intellectual property protection. These levels would take into account varying stages of economic development and local conditions in developing countries, especially given the crisis in access to essential medicines.

In his keynote speech, Deputy Director General of WIPO, Mr Roberto Castelo said that WIPO has now given technical assistance to 134 developing country Member States in a "demystified and very transparent way." He assured the audience that WIPO's legal advice took into consideration all the flexibilities available in TRIPS.

There was discussion on the viability of having a model law for TRIPS' implementation in developing countries, with some participants urging WIPO to provide such a model, incorporating all the flexibilities confirmed by the Doha Declaration. Some pointed to legal precedents, including Dr William Haddad, a representative from the generic pharmaceutical industry. He suggested that Canada had had "a model compulsory licensing law," referring to legislation, which had been "acceptable to the generic and brand companies for many years" prior to the North American Free Trade Agreement. Mr. James Quashie-Idun, Director of the Cooperation for Development at WIPO, affirmed that his Organization would "take fully into account the Doha Declaration in technical assistance." Mr Castelo also informed participants that WIPO was holding a meeting for least-developed countries in Dar es Salaam in April 2002, at which the Doha Declaration and intellectual property would be discussed. WHO and WTO would participate.

Buying medicines in a pharmacy in Guatemala. Global trade agreements and their impact on the pharmaceutical sector affect us all

Photo: WHO/PAHO/C. Gaggero

Implementing Doha provisions

Later discussions focused mainly on the specifics of the Doha Declaration. Professor Carlos Correa, of the University of Buenos Aires, pointed out that least-developed countries face a serious practical hurdle, as Article 31.f of the TRIPS Agreement requires compulsory licences to be used "predominantly for the supply of the domestic market." This clause may restrict developing countries that do have domestic drug production capacity (e.g. India) from exporting sufficient quantities of medicines to those that do not, making compulsory licensing a meaningless measure for many least-developed countries, Professor Correa argued. Recognising the problem, the Doha Declaration charged the TRIPS Council to "find an expeditious solution" by the end of 2002. He outlined some current proposals to address this situation, urging that "whatever the approach followed, there must be sufficient incentive for generic companies to supply markets that may need more quantities of a given medicine at a low price."

According to Professor Correa, compulsory licences are "an integral part of the patent system to ensure some competition." Given the subject's importance many participants were eager to see how compulsory licensing measures had been implemented in industrialised countries, particularly in the US and UK. In both places the practice of "government use" is current, and delegates heard from two speakers how this often serves the same purpose as compulsory licensing.

From the industry perspective, however, "compulsory licensing is not needed to improve access to quality affordable care," according to Dr. Eric Noehrenberg of the International Federation of Pharmaceutical Manufacturers Associations. He instead asked participants to "encourage the governments to take up the offers made by my companies" such as drug donations and discounted pricing.

Another key issue was the possibility of long, expensive legal challenges brought by patent holders if a country attempted to issue a compulsory licence. Again various solutions were proposed which some participants felt could enable WIPO to expedite proceedings.

There was also discussion of technology transfer as a necessary element pharmaceutical to build production capacity for a truly sustainable solution. Under the terms of the Declaration, developed country Members are obligated to submit reports to the TRIPS Council by the end of 2002, detailing their efforts to create incentives for technology transfers to least-developed countries.

Moving forward

The conference revealed much enthusiasm among developing countries for implementing the Doha Declaration's provisions, in order to improve access to essential medicines. Concrete proposals for taking advantage of the Declaration emerged, including ways to put compulsory licensing into practice and examples of possible model legislation. It was clear from the broad range of conference participants that intellectual property rights are increasingly of concern - not only to intellectual property rights specialists - but also to policy-makers involved in health, development and trade.

Copies of their Conference report are available from Médecins Sans Frontières, PO Box 6090, 1211 Geneva 6, Switzerland.