[Ip-health] Chilean Chamber of Deputies approves resolution for compulsory licenses for patents relating to the coronavirus virus | Knowledge Ecology International

Luis Gil Abinader luis.gil.abinader at keionline.org
Tue Mar 17 17:26:17 PDT 2020


An English version of Resolution 896 adopted on March 17, 2020 by the
Chilean Chamber of Deputies, translated by KEI, is now available in the
following link: https://www.keionline.org/chilean-covid-resolution

Commentary from Chile on the resolution:

Deputy Giorgio Jackson.

“Today we approved a draft resolution for the Government to declare
COVID-19 as a public health problem for the purposes of eventual
non-voluntary licenses over vaccines or treatments that may be needed to
fight the pandemic, Hopefully all governments do it!”

Luis Villarroel, Director of Corporación Innovarte (advocacy group that
played a key advocacy role in support of Resolution 896).

“This is an important step towards strengthening available legal tools for
access to technologies that are useful for fighting this pandemic in Chile.
And, improving transparency through the Global Observatory on Health R&D,
as mandated in the resolution, would allow us to better understand the
costs of developing these technologies and what roles are being played by
each actor.”


RESOLUTION FOR THE GRANTING OF NON-VOLUNTARY LICENSES REFERRED TO IN
ARTICLE 51º Nº 2 OF INDUSTRIAL PROPERTY LAW Nº 19.030 TO FACILITATE ACCESS
AND AVAILABILITY OF MEDICINES AND TECHNOLOGIES FOR THE PREVENTION,
TREATMENT AND CURE OF CORONAVIRUS COVID-19

Valparaíso,

To the Honorable Chamber of Deputies of the Republic.

I. CONSIDERING:

1. That the World Health Organization (WHO) declared COVID-19 a global
pandemic on March 11, 2020 due to the alarming levels of expansion and
severity of the outbreak after a 13-fold increase in the number of cases
outside of China and tripling the number of people affected.

2. That, as the WHO informs, the coronavirus are an extensive family of
viruses that can cause disease in animals as well as in humans. In humans,
several coronaviruses are known to cause respiratory infections that can
range from the common cold to more serious illnesses such as Middle East
Respiratory Syndrome (MERS) and severe acute respiratory syndrome (SARS).
The coronavirus recently discovered, called SARS-CoV-2, causes the
coronavirus disease COVID-19, an infectious disease that to date is present
in at least 130 countries, with more than 165,000 confirmed cases reported,
and over 6500 deaths globally.

3. That, on March 7, 2020, a decree was published in the Official Gazette
by which the Ministry of Health declared a sanitary emergency due to a
public health emergency of international importance (ESPII) due to the
outbreak of the new coronavirus (SARS-CoV-2).

That, in addition, Chile has already entered the phase 4 of this pandemic,
as informed on March 16, 2020 by the President of the Republic on national
television. The above unequivocally results not only in a Public Health
problem, but in an emergency that threatens us with devastating
consequences.

4. That, although to date we do not know what are the vaccines,
medications, diagnosis, equipments, and other technologies that are useful
for the surveillance, prevention, detection, diagnosis, and treatment of
people infected with COVID-19, as a country we must be prepared so that,
within our regulatory framework, the necessary measures and resolutions are
taken expeditiously so that both the public and private sectors can
generate the responses that this health emergency demands.

5. That it is possible to project, taking into account the international
experience, that Chile’s current capacity in relation to beds as well as
general infrastructure and the normal health supply system will be far
exceeded, considering the seriousness of the problem. Considering this, and
as a result of the international demand and the existing stocks in the
internal and external market in terms of medicines, equipment and supplies,
the health crisis will only deepen.

6. That the availability of novel medicines, supplies and equipment may
also be restricted by legal monopolies resulting from patent rights and
other forms of industrial property, which limit both the importation or
manufacture, which is a risk for access that must be anticipated and
corrected with urgency and due anticipation.

7. That, in this sense, it is necessary to take into account the Resolution
67.6 of the World Health Assembly, which asked Member States “12) to
consider, when appropriate, the use of mechanisms to make use of the
flexibilities provided in the Agreement on Aspects of Intellectual Property
Rights related to Commerce in order to promote access to specific
pharmaceutical products”.

Likewise, Resolution WHA 66.22 (2013) of the World Health Assembly that
asked the Director General of the World Health Organization “to establish a
global health research and development observatory within WHO’s Secretariat
in order to monitor and analyse relevant information on health research and
development . . . with a view to contributing to the identification of gaps
and opportunities for health research and development and defining
priorities in consultation with Member States . . .”;

Resolution 69.23 (2016) of the World Health Assembly, which requested the
Director-General to “expedite the further development of a fully functional
Global Observatory on Health Research and Development”;

And, finally, Resolución 72.8 (2019), adopted by the World Health Assembly,
which urged Member States to adopt measures to improve the transparency of
the markets for medicines, vaccines and other health products.

8. Taking into account articles 1, 19, No. 1 and 9, 52, No. 1, literal a),
of our Political Constitution of the Republic and articles 1, No. 13, 311,
and 114 of the Regulations of the Corporation Chamber of Deputies.

9. That, in addition, what has been previously stated by this Honorable
Chamber should be considered: “the right to health is a constitutional
right that can be demanded to the State of Chile, by direct mandate of our
Constitution, in its art. 19 No. 9, it is not a mere programmatic
provision, but comprises a series of positive and negative obligations for
the State and whose beneficiaries are the persons, holders of the right.
The Constitution develops some of these obligations, but the right to
health protection itself is not exhausted in that list. There is already
sufficient doctrine in this regard, following a harmonious interpretation
of art. 19 and the idea of the minimum content of the law, as has been
pointed out by international doctrine.”

That in the same sense this Honorable Chamber has indicated that “the
constitutional mandate in its art. 5th inc. 2nd for the full application of
the international treaties ratified by Chile and in force, including the
International Covenant on Economic, Social and Cultural Rights, provides
the right to health in its art. 12, together with the general observations
that the ESCR Committee of the ICESCR has prepared in relation to the right
to health. This treaty, in its paragraph 43, establishes a series of
non-derogable obligations that, in no case can the signatory state fail to
fulfill, which are non-derogable. These basic obligations are: a) Guarantee
the right of access to health centers, goods and services; d) Provide
essential medicines, according to the periodic definitions of the WHO; e)
Ensure an equitable distribution of all health facilities, goods and
services; f) Adopt and apply, on the basis of epidemiological evidence, a
national public health strategy and action plan.”

10. That, in less critical circumstances on January 17, 2017, the Chilean
Chamber of Deputies resolved to require the Ministry of Health to integrate
into its policies, the obtaining of compulsory licenses when necessary,
particularly with respect to Hepatitis C disease and medications for your
treatment.

11. Finally, what is prescribed in the arts. 51º Nº 2, 51º bis C and 30º
all of the Law Nº 19.030 of Industrial Property, norms that expressly
establish the possibility of establishing compulsory licenses to patent
rights for reasons of public health declared by the competent authority. In
particular, that this situation fully meets the ground provided under art.
51º No. 2 of said law relating to the existence of reasons of public health
or non-commercial public use and which must be declared by the competent
authority (Ministry of Health) justifying the compulsory licensing.

III. THAT, THEREFORE, THE H. CHAMBER OF DEPUTIES, AGREES THE FOLLOWING
DRAFT RESOLUTION:

1.- DECLARE: That pursuant to this background, the coronavirus epidemic
worldwide and in our country, and its risks to the health of the Chilean
population, in accordance with the aforementioned, constitute sufficient
justification for the granting of the non-voluntary licenses contemplated
in article 51º No. 2 of Industrial Property Law No. 19.039 to facilitate
access to vaccines, drugs, diagnostics, devices, supplies, and other
technologies useful for the surveillance, prevention, detection, diagnosis
and treatment of people infected by the coronavirus virus in Chile, for
public health reasons and/or national emergency, as provided in
international laws, particularly the Doha Declaration on the TRIPS
Agreement and Public Health.

2.- REQUIRE: The Minister of Health, Mr. Jaime Mañalich Muxi, to declare
the existence of Public Health reasons for the granting of non-voluntary
licenses provided in Article 51º No. 2 of Industrial Property Law No.
19.039, regarding all patent applications and issued patents related to
vaccines, drugs, diagnostics, devices, supplies, and other technologies
useful for the surveillance, prevention, detection, diagnosis and treatment
of persons infected with the coronavirus SARS-CoV-2, por public health
grounds.

3.- TO REQUIRE: The Minister of Health, Mr. Jaime Mañalich Muxi, to
instruct the corresponding ministerial departments, as well as the health
services and the Supply Center, to report the vaccines, drugs, diagnostic
tests, supplies, equipment and others technologies that are projected will
be required as an essential, for the purposes of the determination by the
National Institute of Industrial Property of the the existence of patents
or other industrial rights that restrict their importation or national
production.

4. TO REQUIRE the Minister of Health to request the World Health
Organization (WHO) Global Observatory on Health R&D to collect information
on the research and development costs directly associated with vaccines,
drugs, diagnostics, devices, supplies, and other technologies useful for
the surveillance, prevention, detection, diagnosis and treatment of
COVID-19, including the investments made by public sector institutions,
private sector institutions, and charities.

On Tue, Mar 17, 2020 at 5:00 PM James Love <james.love at keionline.org> wrote:

> I should have mentioned, a PDF of the resolution, in Spanish, is linked to
> the blog.
>
> On Tue, Mar 17, 2020 at 4:43 PM James Love <james.love at keionline.org>
> wrote:
>
> > This will be updated in a bit, with an English translation of the
> > resolution, and some quotes from people in Chile who made this happen.
> >
> >
> > https://www.keionline.org/32385
> >
> > March 17, 2020 by Luis Gil Abinader
> >
> > Today, with an overwhelming 127 votes in favor and 0 votes against, the
> > Chilean Chamber of Deputies approved a strong resolution asking the
> Chilean
> > Government to declare that there is justification for compulsory licenses
> > for vaccines, drugs, diagnostics, devices, supplies, and other
> technologies
> > useful for the surveillance, prevention, detection, diagnosis and
> treatment
> > of people infected by the coronavirus virus in Chile.
> >
> > The resolution also has a strong transparency mandate, asking the
> Minister
> > of Health to request the World Health Organization (WHO) Global
> Observatory
> > on Health R&D to collect information on the costs associated with health
> > technologies related to COVID-19.
> >
>
>
> --
> James Love.  Knowledge Ecology International
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