[Ip-health] Threat of Pharmaceutical-Related IP Investment

Ante Wessels ante at ffii.org
Mon Sep 23 15:21:35 PDT 2013


On Mon, Sep 23, 2013 at 01:59:55PM +0000, Baker, Brook wrote:
> Thanks, Bryan, for your suggestion that 4(b) may be as good as we can get,
> but I hope it is not.  My proposal is not so much this time that there be
> no investment clause coverage of health regulations, but that there be no
> investment clause coverage of IP-related claims.  However, upon
> reflection, we probably do need something even stronger with respect to
> public-interest-oriented regulation, including health.  

In my opinion, no textual safeguard will be good enough, as we
are dealing with a captive in-crowd, and a captive in-crowd can
always find a way around safeguards. 

Elevating companies to the level of states distorts the trias
politica, this should never be allowed, it provokes captive
in-crowds.

http://acta.ffii.org/?p=1942
http://corporateeurope.org/publications/profiting-from-injustice

best,

Ante



>Maybe you could
> help us move this project forward by suggesting how we can defend against
> claims that:  (1) rare circumstances are not present, (2) that regulations
> are not discriminatory, or (3) that the regulations are designed and
> applied to protect legitimate public welfare objectives.  The reason that
> health/IP advocates are concerned is that the US and Pharma are willing to
> twist any action into some they called discriminatory.  Thus, Members of
> Congress and others call India's patent decisions discriminatory and
> protectionist even when they are fully TRIPS compliant, and Eli Lilly
> calls Canada's promise doctrine discriminatory even though it is the
> result of judicial decisions made after patent challenges by third party
> generics.  US and European pharmaceutical patent holders are always going
> to get the bulk of the bad news on patent related matters because they own
> the vast bulk of such patents!
> 
> On your second point, concerning direct expropriation, thanks for pointing
> out that it was incorrect.  Although the history of direct expropriation
> lies in physical seizures, it has been extended as you suggest.  Do you
> think there's any merit to Eli Lilly's claim that there is direct
> expropriation in the case of a patent invalidation decision?
> 
> Brook
> 
> Professor Brook K. Baker
> Northeastern U. School of Law
> Affiliate, Program on Human Rights and the Global Economy
> 400 Huntington Ave.
> Boston, MA 02115 USA
> Honorary Research Fellow, University of KwaZulu Natal, Durban, S. Africa
> Senior Policy Analyst Health GAP (Global Access Project)
> Alternate NGOs Board Member UNITAID
> (w) 617-373-3217
> (cell) 617-259-0760
> (fax) 617-373-5056
> skype: brook_baker
> b.baker at neu.edu
> 
> 
> 
> 
> On 9/23/13 1:44 AM, "Bryan MERCURIO (Faculty of Law)"
> <b.mercurio at cuhk.edu.hk> wrote:
> 
> >Dear Brook
> >
> > 
> >
> >While I agree with you that Eli Lilly's claim against Canada should
> >fail, I do not entirely agree with your analysis. In part II of your
> >paper, I find your analysis of the draft TPP chapter (essentially, the
> >US submission from 2011 rather than agreed upon text) at times to be
> >unfairly negative. Language such as that of 4(b) [also seen in the
> >KORUS, but not in earlier treaties] is a huge win for public health and
> >the environment, and I fear the constant press without recognizing gains
> >will eventually undermine the cause as governments tune out - no matter
> >what they do it will never be enough. The intent of the language is
> >clear, and it is worded as strongly as it possible could be:
> >
> > 
> >
> >"Except in rare circumstances, non-discriminatory regulatory actions by
> >a Party that are designed  and applied to protect the legitimate public
> >welfare objectives [23 For greater certainty, the list of legitimate
> >public welfare objective in this subparagraph is not exhaustive] such as
> >public  health, safety, and the environment, do not  constitute indirect
> >expropriations."
> >
> > 
> >
> >Really, if this is not good enough what is it that you want? What would
> >satisfy you? A blanket exception whenever the word "health" is used in a
> >regulation?  So, while a provision such as "foreign investors cannot
> >invest in Boston" would violate NT and MFN but "foreign investors cannot
> >invest in Boston, for health reasons" would be immune to challenge? Of
> >course, the language is no panacea or magic bullet, and it does shift
> >the argument to whether something is a "rare circumstance",
> >"legitimate", and actually a "public health/environment/etc" measure,
> >but it's a pretty clear statement of intent from the parties.
> >
> > 
> >
> >I should also mention your claim that direct expropriation is "limit[ed]
> >...to governmental seizure of real property" is flat out incorrect. If
> >the US government seized the trademarks of foreign companies and
> >distributed them to US companies, there would be a direct violation of
> >the relevant treaties. Full stop. While the claims we have seen relating
> >to IPRs (i.e. tobacco) are indirect expropriations, there is no
> >limitation.
> >
> > 
> >
> >This is a case worth publicizing, and it should be receiving as much
> >attention as the Indian cases of Glivec and Novartis (hello, NGOs!), but
> >careful attention must be paid not to conflate issues or fail to
> >recognize how treaty language is moving in the pro-health/environment
> >direction.
> >
> > 
> >
> >Kind regards
> >
> > 
> >
> >Bryan
> >
> > 
> >
> > 
> >
> > 
> >
> > 
> >
> >Bryan Mercurio
> >
> >Professor and Vice Chancellor's Outstanding Fellow of the Faculty of Law
> >
> >Associate Dean (Research)
> >
> >The Chinese University of Hong Kong
> >
> >Shatin, NT
> >
> >HONG KONG
> >
> >Tel: +852 3943 1139
> >
> >Faculty webpage: http://www.law.cuhk.edu.hk/people/mercurio-bryan.php
> ><http://www.law.cuhk.edu.hk/people/mercurio-bryan.php>
> >
> >SSRN author page: http://ssrn.com/author=346439
> ><http://ssrn.com/author=346439>
> >
> > 
> >
> > 
> >
> > 
> >
> > 
> >
> >----------------------------------------------------------------------
> >
> > 
> >
> >Message: 1
> >
> >Date: Fri, 20 Sep 2013 14:34:03 +0000
> >
> >From: "Baker, Brook" <b.baker at neu.edu>
> >
> >To: IP-health <ip-health at lists.keionline.org>,
> >
> >                "healthgap at lists.critpath.org"
> ><healthgap at lists.critpath.org>,
> >
> >                "internationaltreatmentpreparedness at yahoogroups.com"
> >
> >                <internationaltreatmentpreparedness at yahoogroups.com>
> >
> >Subject: [Ip-health] Threat of Pharmaceutical-Related IP Investment
> >
> >                Rights in the Trans-Pacific Partnership Agreement: An
> >Eli Lilly v.
> >
> >                Canada Case Study
> >
> >Message-ID: <CE61D516.437F0%b.baker at neu.edu
> ><mailto:CE61D516.437F0%25b.baker at neu.edu> >
> >
> >Content-Type: text/plain; charset="Windows-1252"
> >
> > 
> >
> >Threat of Pharmaceutical-Related IP Investment Rights in the
> >Trans-Pacific Partnership Agreement: An Eli Lilly v. Canada Case Study
> >
> > 
> >
> >Brook K. Baker
> >
> > 
> >
> > 
> >
> >After losing two patent cases before the appellate courts of a Western
> >democracy, should a disgruntled foreign multinational pharmaceutical
> >company be free take that country to private arbitration claiming that
> >its expectations of monopoly profits had been thwarted by the courts?
> >decisions? Should governments continue to negotiate trade agreements
> >where expansive Intellectual Property-related investor rights and
> >investor- state dispute settlement (ISDS) are enshrined into hard law?
> >Should we be concerned about the impact of billion dollar arbitral
> >judgments on the willingness of governments to regulate pharmaceutical
> >companies and to corral their efforts to expand their patent and data
> >protection monopolies? Ultimately, should policy makers be concerned
> >about the impact of investor rights on the affordability and
> >accessibility of medicines both in rich and low- and middle-income
> >countries?
> >
> > 
> >
> > 
> >
> >The answers to these questions become more urgent given proposed IP and
> >Investment Chapters in the Trans- Pacific Partnership Agreement (TPP)1
> >and the recent NAFTA investor dispute notifications by Eli Lilly against
> >Canada.2 The Eli Lilly case clarifies the risks of including IP rights
> >in investment chapters and the boundary- pushing claims that can be
> >brought on behalf of foreign pharmaceutical companies.
> >
> > 
> >
> > 
> >
> >4:4 Investment Treaty News 8-10 (2013), available at,
> >http://www.iisd.org/pdf/2013/iisd_itn_sept_2013_en.pdf
> >
> > 
> >
> > 
> >
> > 
> >
> > 
> >
> >_______________________________________________
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> >Ip-health at lists.keionline.org
> >http://lists.keionline.org/mailman/listinfo/ip-health_lists.keionline.org
> 
> 
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