[Ip-health] Pharmalot: More Senators Skeptical Over Counterfeit Trade Deal

Judit Rius Sanjuan judit.rius at keionline.org
Thu Oct 21 13:49:45 PDT 2010


More Senators Skeptical Over Counterfeit Trade Deal
By Ed Silverman // October 21st, 2010 // 7:31 am

Still more senators are expressing concern over the Anti-Counterfeiting Trade Agreement, which is being negotiated by the US, the European Union and other countries in a bid to bolster intellectual property rights and border enforcement (look here). However, critics say the deal would crimp access to lower-cost generics (see this) and development of biologics.

The latest worries are contained in an Oct. 19 letter by two US senators - Vermont’s Bernie Sanders, an independent, and Sherrod Brown, an Ohio Democrat - who note the trade deal is being negotiated as an executive agreement, which would not require Congressional approval “on the premise that it would not require changes to US law.” But it might.

If the trade deal were to be approved in its current form, it would bump up against provisions of the recently passed health care reform. Specifically, the issue raised by the senators has to do with biologics, patents and damages. For instance, if a company wants to sell a generic and is given a list that does not include a patent, the damages for infringing that patent would not be awarded - zero.

But the trade deal would require damages for any and all infringement, regardless of disclosure, according to Jamie Love of Knowledge Ecology International, a non-profit group that focuses on intellectual property issues that affect access to medications. “What ACTA would do is take away incentives to dislcose your patents because you would still be able to win damages,” he tells us.

“The patent holder could press for damages even if they hadn’t disclosed,” he continues. “Discloure is a way of providing comfort to investors…But if ACTA passes as is, it would be contrary to US law, and the US would be obligated to change the bioogics provision.” He notes the agreement could then also have implications for other trade deals the US reaches with others.

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