[Ip-health] National Association of Manufacturers told USTR the EU position on LDC extension made a mockery of international trading system

Thiru Balasubramaniam thiru at keionline.org
Thu Sep 22 14:18:24 PDT 2016



National Association of Manufacturers told USTR the EU position on LDC
extension made a mockery of international trading system

Submitted by thiru on 21. September 2016 - 22:36

On September 10, 2015, the National Association of Manufacturers (NAM),
wrote to USTR expressing alarm at the European Union support of an
indefinite extension of a WTO waiver of obligations to grant patents on
pharmaceuticals for UN defined least developed countries (LDCs). In 2015,
there were 954 million persons living in LDCs, with a per capita income of
$964, according to the World Bank. The EU had aligned itself with health
advocates trying to protect the bottom billion access to life saving

On September 21st, 2016, the Office of the United States Trade
Representative (USTR) released 72 pages of correspondence in response to a
FOIA request submitted by Knowledge Ecology International (KEI) on
September 16, 2015 for

all notes and correspondence between the Office of the US Trade
Representative and any non-government person or entity regarding the World
Trade Organization's (WTO) Trade-Related Aspects of Intellectual Property
Rights (TRIPS) Council and the proposed Least Developed Country (LDC)
request for an extension of the transitional period in the TRIPS Agreement
for pharmaceutical products.

Contained in the 72 pages of correspondence is a letter dated September 10,
2015, from Linda Dempsey (Vice President, International Economic Affairs,
National Association of Manufacturers, NAM) to two USTR officials, Chris
Wilson (Deputy Chief of Mission to the WTO) and George York (Deputy
Assistant USTR for Intellectual Property and Innovation at USTR) opposing
the request by least-developed Members of the WTO for an extension of the
transitional period under Article 66.1 of the TRIPS Agreement for Least
Developed Countries with respect to Pharmaceutical Products, and for
waivers from the obligation of Articles 70.8 and 70.9 of the TRIPS
Agreement for as long as a WTO member remained a least developed country.

On September 10, 2015, the European Commission released a statement
providing unequivocal support for the LDC position:

The Commission agreed to support the least developed countries' call for
easier access to cheaper medicines by means of an indefinite exemption from
World Trade Organization (WTO) intellectual property rules for

Commissioner Malmström said: "The poorest countries of the world need
effective access to medicines. Although patents stimulate innovation in
developed and emerging economies, intellectual property rules should be a
non-issue when the world's poorest are in need of treatment. This exemption
will give the least developed countries the necessary legal certainty to
procure or to produce generic medicines. I am confident that the Council
will support this approach, and that the EU will take the lead in the WTO
in this field."

The WTO granted a time-limited exemption before to these countries, but the
Commission believes that extending it indefinitely would give legal
certainty for long-term supply as well as enhance local production of
much-needed medicines (Source: European Commission Press Release, European
Commission supports better access to medicines in poorest countries,
September 10, 2015, http://europa.eu/rapid/press-release_IP-15-5620_en.htm)

In Dempsey's communication to USTR (copying USTR's Probir Mehta, General
Electric's Thaddeus Burns and NAM's Ken Monahan), Dempsey remarked:

The NAM's International Intellectual Property Task Force (chaired by
Thaddeus) met with Probir today on trade secrets. Of course, the EU's very
disturbing announcement about an indefinite exemption for LDCs came up and
Probir suggested we reach out to you.

Dempsey indicated NAM's opposition to the LDC request (backed by the
European Union) of an indefinite exemption for LDCs for TRIPS obligations
on pharmaceuticals. Dempsey noted that while her industry "tolerated
extensions of the commitments extended into by these countries", she
characterized the EU's support of the LDC position as "making a mockery of
the international trading system."

Concluding her message, Dempsey noted that GE's Thaddeus Burns (who chaired
NAM's Intellectual Property Task Force) would engage with Business Europe
to galvanize industry opposition in Europe to oppose the LDC Group's
efforts to secure an LDC extension that would grant an extension on the
TRIPS requirements for LDC members until graduation.

Dempsey started off her career as a Peace Corps volunteer in Togo, an LDC,
where she worked on developing agricultural curriculum and taught "students
and teachers on best agricultural practices" (Source: LinkedIn biography of
Linda Menghetti Dempsey).

A feature in The Hill - Global trade guru - provide some insight into
Dempsey's career trajectory from a Peace Corps volunteer in Togo to a
seasoned Washington insider focused on denying LDC an indefinite exemption
from TRIPS obligations on pharmaceutical drug patents.

"Linda Dempsey . . . is juggling numerous massive projects, from
deciphering the contents of the 12-nation Trans-Pacific Partnership (TPP)
to working on a U.S.-European Union deal. She is also busy with
intellectual property protection, investment issues and the elimination of
trade barriers...

Dempsey loves being swamped with work and admits to getting easily bored.
“I couldn’t wait to go to law school, loved debate, loved that type of
stuff,” she said. “I got to Berkeley and really did not find it that
challenging or that relevant the first year.”

To fill the unexpected void, she embarked on a three-year stint in the
Peace Corps in Togo, West Africa. She did stints at a couple of law firms
before making her way to then-Sen. Bill Bradley’s (D-N.J.) office in the
fall of 1995, where she also worked on immigration reform. After Bradley
left office, she became trade counsel for the Senate Finance Committee and
Sen. Daniel Patrick Moynihan (D-N.Y.) until he retired in 2000...

Brian Pomper, with Akin Gump, called her “a force of nature . She is
absolutely a take-charge person who gets things done (Source: The Hill,
Global Trade Guru, November 23, 2013).”

In 2015, this force of nature set her gaze upon the 954 million very poor
people living in least developed countries.

In June 2015, The WTO LDC Group gave this rationale for the drug patent

It would be unconscionable for WTO Members to grant LDCs – the most
vulnerable segment of countries – a time limited transition period,
requiring them to repeatedly seek extensions. A time limited transition
period creates an uncertain environment for the producers of affordable
medicines, procurement agencies, donors as well as LDC governments that
rely on the specific pharmaceutical transition period to produce and import
affordable medicines. This in turn jeopardizes the health situation of the
people and communities within LDCs, with especially adverse consequences
for the scaling up of HIV/AIDS treatment. LDCs cannot deal with increasing
communicable and non-communicable disease burden without the assurance of
continuous availability of generic medicines as long as they remain LDCs
(Source: WTO TRIPS Council (June 2015): LDC Group Presentation on the
Extension of the Decision for Pharmaceutical Products

The two other industry voices included in the email were Thaddeus Burns and
Ken Monahan. Burns previously spent three years working for USTR, where he
was known as an ardent ally of the pharmaceutical industry. Ken Monahan is
currently Director for International Trade Policy at NAM. Previously he
worked for the US Department of Commerce and for the House Ways and Means
Committee. All three, Dempsey, Burns and Monahan, had worked for the
federal government, the Congress, or both.

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