[Ip-health] BIO, PhRMA and US Chamber of Commerce express fear of UN High-Level Panel on Access to Medicines in letter to Senator Hatch

Thiru Balasubramaniam thiru at keionline.org
Fri Apr 1 07:40:55 PDT 2016


Submitted by thiru <http://keionline.org/user/6> on 31. March 2016 - 18:11

In a sternly worded letter dated 18 February 2016, the Biotechnology
Innovation Organization (BIO), the National Association of Manufacturers
(NAM), the National Foreign Trade Council (NFTC), the Pharmaceutical
Research and Manufacturers of America (PhRMA), the U.S. Chamber of Commerce
(the Chamber) and the United States Council for International Business
(USCIB) wrote Senator Orrin Hatch (Republican - Utah) expressing serious
reservations with the United Nations High-Level Panel on Access to
Medicines (UN HLP) <http://www.unsgaccessmeds.org/new-page/>. The letter by
these six industry organizations represent a large range of interests
including the following companies: Abbvie, British American Tobacco,
Campbell Soup, Chevron, Coca Cola, Deloitte & Touche, eBay, Eli Lilly,
Ernst & Young, Exxon Mobil, Ford, General Electric, Gilead Sciences, Glaxo
SmithKline (GSK), Google, Intel, Johnson & Johnson, Microsoft, Northrop
Grumman, Novartis, Pfizer, Procter & Gamble Company, Qualcomm, Roche,
Sanofi, Toyota Motor Sales, Verizon and Walmart.

In this communication to Senator Hatch, these industrial behemoths weave an
intriguing web connecting the UN High Level Panel on Access to Medicines
with the Paris climate change negotiations of 2015 and the World Health
Organization's negotiations on a Framework of Engagement with Non-State
Actors (FENSA). These industrial giants appeal to Hatch to work closely
with the Obama Administration to replicate the Paris model of an "effective
approach to safeguard innovation at multilateral institutions" waxing
lyrically about the successful outcome of the final UNFCCC text which
contained no references to intellectual property.

There is a positive precedent for such an approach: recent coordination
among the U.S. Department of State, Office of the U.S. Trade Representative
(USTR) and the U.S. Department of Commerce at the December 2015 UN
Framework Convention on Climate Change (UNFCCC) negotiations in Paris. In
Paris, technical and IP experts from different parts of the Administration
worked together to secure a final UNFCCC text that does not mention IP and
thus removes uncertainty that could have discouraged continued investments
by U.S. companies in clean technology.

*Background on Senator Orrin Hatch*

Senator Hatch, chairman of the Senate Finance Committee and President pro
tempore of the United States Senate, is an ardent supporter of expanded
intellectual property norms, who in April 2011, wrote a letter to
then-Secretary of State, Hillary Clinton complaining about Global Fund's
policy on generic procurement and compulsory licensing. In this letter to
Secretary Clinton, Senator Hatch proceeded to give a rather twisted reading
of the TRIPS Agremeent:

By advocating for developing countries to disregard the Agreement on
Trade-Related Aspects of Intellectual Property Rights (TRIPS) through
issuing compulsory licenses to gain access to Global Fund grants, we are
abusing the system. (Source: Letter from Senator Hatch to Secretary Clinton,
<http://keionline.org/sites/default/files/HatchClintonGlobalFund2011.pdf> 13
April 2011)

*Effective inter-agency approach to safeguard innovation at multilateral

In reaching out to Hatch, PhRMA, BIO and the Chamber express fear that the
UN HLP "could degrade the global ecosystem for innovation, leading
companies to curb investments in R&D and thus depriving people worldwide of
critical advances in areas like healthcare and clean energy."

The trade associations identify the following problems with the UN HLP:

Challenges to IP protection are proliferating throughout the UN system, and
the approach adopted by the U.S. delegation in Paris could be applied to
other UN initiatives, such as the recently announced UN High Level Panel on
Access to Medicines (UNHLP). This panel, formed by the UN Development
Program (UNDP) in November 2015, will analyze and make recommendations to
“remedy the policy incoherence between the justifiable rights of inventors,
international human rights law, trade rules and public health in the
context of health technologies.”

We are concerned, however, that the UNHLP process will not provide for an
informed, balanced, and inclusive dialogue that adequately incorporates the
perspectives of innovators. Concerns have already arisen from the lack of
transparency regarding the selection of the panel members and experts, the
limited scope of inquiry that specifically excludes the broader context
needed to understand the complex issues impacting the development and
deployment of health-related technologies, and the tight timeline for the
Panel’s work that allows little room for stakeholder engagement. Based on
the lack of balance evident in the background and views of Panel and
advisory group members, and as well as the lack of important context about
the value of intellectual property in the Panel’s supporting documents, it
is unfortunately likely that the result of this process, while perhaps
well-intentioned, will be ill-informed.

As a policy response to the UN HLP, these US trade associations propose
replicating the assiduous, inter-agency, full court press the United States
government pursued, in tandem with big business, in the run-up to the Paris
Climate Change Conference in November 2015. Presumably, in the context of
the UN HLP, PhRMA and BIO aim to coordinate closely with the U.S.
Department of State, the Office of the United States Trade Representative
(USTR), the U.S. Patent and Trademark Office (USPTO), the White House and
the Department of Health and Human Services (DHHS).

Significant challenges to IP still remain in the Paris Agreement’s
implementation and subsequent negotiations—especially those related to the
technology development and transfer chapter. Nonetheless, we are certain
that the successful UNFCCC outcome on IP in Paris could not have been
achieved without close interagency cooperation and collaboration among the
U.S. government’s technical and IP experts in dialogue with business. This
allowed the U.S. delegation to develop and defend consistent negotiating
positions that, ultimately, are in the interest of not only U.S.
innovators, but also people everywhere who will benefit from clean
innovation in the years to come. We would recommend that this coordination
continue on other
important debates....

U.S. leadership will be essential to managing diverse initiatives across
the UN system, such as the UNHLP, to ensure that they do not undermine
innovation. All relevant U.S. government agencies must be aligned in such
efforts, and the U.S. delegation must be appropriately staffed with
officials from the agencies with IP expertise. This formula was essential
to the positive outcome in the UNFCCC negotiations in Paris, and it should
be retained as we tackle ongoing discussions that impact technology and
healthcare innovation in the United Nations.

In light of this letter to Senator Hatch, one wonders if these trade
associations have also expressed similar concerns to the Obama
administration? The companies exult in the outcome of the Paris Agreement
which expunged references to intellectual property. Following on the heels
of the Paris Climate Change Conference in November 2015, it is clear that
interests as diverse as British American Tobacco, General Electric, Pfizer
and Walmart seek to cripple the HLP's quest to "remedy the policy
incoherence between the justifiable rights of inventors, international
human rights law, trade rules and public health in the context of health
technologies" in a bid to maintain the status quo.

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