[Ip-health] De Gucht's response on ACTA, inclusion of patents and access to medicines

Malini Aisola malini.aisola at keionline.org
Fri Jul 9 07:40:10 PDT 2010

Commissioner De Gucht has responded to the following question from MEP
Ska Keller (Greens/EFA) sent to the Commission on June 7, 2010 

        India and Brazil have initiated action against the EU over the
        seizures of generic drugs in transit, through the WTO dispute
        settlement process. I hope that the matter will be resolved in
        this initial phase during the period of consultation.
        Is the Commission aware of concerns voiced by India, during a
        Greens/EFA briefing on ACTA on 4 May, related to proposed
        TRIPS-plus provisions in ACTA that could threaten legitimate
        trade in generic medicines and global public health?
        How can the Commission pursue such provisions in ACTA that
        clearly breach commitments under the Doha Declaration on the
        TRIPS Agreement and Public Health and the ‘Global strategy and
        plan of action on public health, innovation and intellectual
        property’ (WHA Resolution 61.21), and are obviously linked to
        the dispute settlement proceedings against the EU?
        How will the Commission ensure that these unjustifiable
        provisions being pursued in ACTA, which would endanger access to
        medicines, will stop immediately? In Parliament’s resolution on
        the transparency and state of play of the ACTA negotiations of
        10 March 2010, we clearly asked the Commission to limit the ACTA
        negotiations to combating only counterfeiting. I would like to
        know if patents are still being considered within the scope of
        ACTA. I would also like to know whether the Commission has made
        any effort to consult with public health groups to understand
        their concerns regarding the impact proposed ACTA provisions
        could have on innovation and access to medicines.
The answer dated July 8 follows:

        Answer given by Mr De Gucht
        on behalf of the Commission
        The Commission is aware of very recent public statements by the
        Indian Government expressing general concerns about the possible
        negative impact of ACTA on access to medecines by developing
        The Commission can assure the Honourable Member that there are
        no provisions in the ACTA text being currently negotiated that
        could directly or indirectly affect the legitimate trade in
        generic medicines or, more broadly, global public health. This
        can be easily confirmed through an examination of the
        negotiating text, which is publicly available on the
        Commission's website. [1]
        Furthermore, this important principle has been re-affirmed in
        unequivocal terms by all the ACTA negotiating parties in a joint
        communiqué [2] released after the last negotiating round: "ACTA
        […] will be consistent with the WTO Agreement on Trade Related
        Aspects of Intellectual Property Rights (TRIPS Agreement) and
        will respect the Declaration on TRIPS and Public Health".
        The Parliament’s Resolution on the transparency and state of
        play of the ACTA negotiations of 10 March 2010, makes explicit
        reference to counterfeiting (paragraph 9), which relates to
        trademarks, but also to copyright (paragraph 10). With respect
        to both intellectual property rights (IPR), the Resolution calls
        on the Commission to negotiate enforcement clauses within the
        boundaries of applicable European Union legislation. The
        Commission confirms that ACTA will remain in line with the EU
        acquis, including the current level of harmonisation of IPR
        The Commission holds the view that it is important for ACTA to
        cover not only trademark counterfeiting, since a wide range of
        EU economic operators rely on economic activities that need
        various forms of intellectual property protection (e.g.
        geographical indications for high quality agricultural products,
        patents for innovative industries, designs for fashion and
        design based industries and copyright for the entertainment and
        culture sectors).
        However, ACTA will not oblige the parties to introduce  border
        measures or criminal sanctions for patent infringements (the
        intellectual property right that is typically at issue in the
        case of generic medicines). This is exactly in line with the
        TRIPS enforcement regime, which requires WTO Members (including
        India) to introduce enforcement measures against infringements
        of all intellectual property rights but does not extend such a
        comprehensive obligation to these two types of enforcement
        measures ( border measures and criminal procedures).
        Finally, the Commission confirms that it has consulted, on a
        number of occassions in the course of the last two years, not
        only with public health stake-holders and NGOs, but also with
        companies and associations producing generics and even with
        representatives of countries like Brazil and India, to ensure
        that ACTA would not impact the access to affordable medicines
        for developing countries. The Commission has, throughout this
        process, taken on board several proposals to clarify this goal.
        1)      Available at:
        2)      Available at:

Malini Aisola
Knowledge Ecology International
1621 Connecticut Avenue NW, Suite 500, Washington DC 20009
malini.aisola at keionline.org|Tel: +1.202.332.2670|Fax: +1.202.332.2673

More information about the Ip-health mailing list