[A2k] WTO TRIPS Council: India questions the United States on eBay v. MercExchange precedent as alternative to Paragraph 6 mechanism

Thirukumaran Balasubramaniam thiru at keionline.org
Wed Oct 26 03:53:07 PDT 2011


For entire blog, please see: http://keionline.org/node/1299


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On 25 October 2011, the WTO TRIPS Council held its annual review of the Paragraph 6 System. The following are extracts from the intervention of India. Note that under "Any alternatives to the use of Paragraph 6 System to achieve the objective of access to medicines" India asked the United States to shed light on state practice in the US following the US Supreme Court's eBay versus MercExchange ruling (http://keionline.org/content/view/174/1 [2]). When the WTO secretariat publishes its summary of the October 2011 TRIPS Council proceedings, it would be important to examine the United States' response to India's request to provide clarification on how the compulsory licenses and court ordered royalties for medical technologies that followed the eBay precedent "are not bound by the restrictions on exports under a compulsory license granted under Article 31 of the TRIPS". In his closing remarks, the representative of India stated, "In fact we feel that these cases and practices in the US can shed light in addressing the present problem of providing access to public health without the complicated mechanism of Para 6."

India's question to the United States

"My question is to the delegation of the United States. The question is aimed at accessing the State practices on the application of TRIPS Articles 30, 31 and 44 which may be of importance to our current discussion. My question relates to the application of Article 44 of the TRIPS agreement where the court decides about the injunction when a patent has been infringed.....Secondly we note that in the case of Edwards Lifesciences vs CoreValve, a compulsory licence was granted for manufacturing a medical device for manufacture in the United States and meant exclusively for the export market.

We understand that there have been several such cases in the United States following the landmark Supreme Court judgment in eBay vs MercExchange in the issuance of all compulsory licences. We would request the US delegation to explain to the Members how these cases are not bound by the restrictions on exports under a compulsory license granted under Article 31 of the TRIPS. In fact we feel that these cases and practices in the US can shed light in addressing the present problem of providing access to public health without the complicated mechanism of Para 6."


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Thiru Balasubramaniam
Geneva Representative
Knowledge Ecology International (KEI)

thiru at keionline.org



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