It’s been a while since I’ve posted anything IP-related. Bloomberg has just reported that the Andean nations are putting up resistance to US-trade talks, and demanding protection for traditional medicines.
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“It’s the law of unintended consequences,'’ said Michael Gollin, founder of Public Interest Intellectual Property Advisors in Washington, which provides free legal counsel to poor countries in patent disputes. For years the U.S. has pushed these nations to strengthen their patent rules, he said, “and now the countries are learning to use these to their own advantage.'’
The Andean nations want “minor'’ protections for their native plants and the ways they are used, such as a rule requiring companies to inform indigenous tribes of any patent applications based on traditional knowledge and negotiate payment, according to Carlos Correa, a Buenos Aires-based consultant to those nations.
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The Andean nations have long been leaders in addressing biopiracy, and five years ago enacted a joint decision on IP issues which addressed “Biological and Genetic Heritage and Traditional Knowledge”:
Decision 486
Article 3.- The Member Countries shall ensure that the protection granted to intellectual property elements shall be accorded while safeguarding and respecting their biological and genetic heritage, together with the traditional knowledge of their indigenous, African American, or local communities. As a result, the granting of patents on inventions that have been developed on the basis of material obtained from that heritage or that knowledge shall be subordinated to the acquisition of that material in accordance with international, Andean Community, and national law.
The trade talks with the US, of course, go far beyond traditional medicine issues.
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In an illustration of how passionate the issue has become, Colombia’s intellectual-property negotiators resigned their posts in protest in September, complaining that the Colombian trade ministry was likely to accede to U.S. political pressure.
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The chutzpah quote of the article belongs to a PhRMA lobbyist:
“Right now there is no evidence of biopiracy,'’ said Mark Grayson, a spokesman for Pharmaceutical Research and Manufacturers of America in Washington, a lobbying and marketing group that represents drugmakers. “But negotiations are trade- offs, so if that is something they want, what are we going to get in return?‘’ [bold added]
What are US pharmaceutical companies getting in return? You’d think that the Andean nations were the ones initiating imposition of IP obligations on the US! A letter by ten members of Congress spells out the extent of our “return” [if by return, you mean ‘what-we-started-with’] demands:
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Some of these provisions.. facilitate the adoption of standards far beyond those provided in US law. Further, imposing such IP provisions in countries that do not currently have a legal and regulatory framework comparable to that of the United States will serve only to undermine access to affordable medicines in these countries.
In contrast, the Administration has failed to include provisions that would promote greater access to affordable medicines, such as 1) a “Bolar-type” provision to ensure that countries permit testing and experimental work required for the registration of a generic medicine during the patent period of the original product so that generics can enter the market immediately after the expiration of the patent; 2) a requirement that patentholders disclose the “best mode” for reproducing an invention so that society can benefit from it after the patent expires; or 3) caps on patent extensions for delays in the issuance of a patent or the marketing approval process.
…The reality is that IP provisions developed and tailored for the US health care system may be entirely inappropriate for poor countries where few have access even to government clinics, let alone to private hospitals, pharmacies or health insurance.
