[Ip-health] ICTSD policy brief on Technology transfer to LDCs under TRIPS Art 66.2

Suerie Moon suerie_moon at yahoo.com
Mon Jun 20 09:13:56 PDT 2011

Hi everyone,
Some of you may be interested in a policy brief on technology transfer to LDCs 
under TRIPS Article 66.2 published in April by the International Centre for 
Trade and Sustainable Development (ICTSD), especially in light of the KEI policy 
brief below on the opposition of the US and EU to extending the 2016 deadline 
for implementation of pharmaceutical patents and test data protection in LDCs.  
Technology transfer is included in the WHO Global Strategy and Plan of Action on 
Public Health, Innovation and Intellectual Property (GSPoA), which points to 
local production of pharmaceuticals as a key area for investment in Element 3 
and focuses on health-related technology transfer in Element 4.  

The ICTSD publication, "Meaningful Technology Transfer to the LDCs: A Proposal 
for a Monitoring Mechanism for TRIPS Article 66.2", is available here: 

A brief summary: TRIPS Article 66.2 obligates developed countries to "provide 
incentives to enterprises and institutions in their territories for the purpose 
of promoting and encouraging technology transfer to least-developed country 
Members in order to enable them to create a sound and viable technological 
base."  Developed countries report annually to the TRIPS Council regarding their 
activities related to Article 66.2  The paper reviewed all submissions from 
developed countries (79 reports from 1999-2010), and found little evidence that 
TRIPS Article 66.2 has resulted in significant additional incentives beyond 
business-as-usual for transferring technology to LDC Members. There are a number 
of shortcomings in the existing reporting system for developed country 
implementation of Article 66.2: it is not clear which countries are defined as 
"developed" and therefore bound by the Art 66.2 obligation; countries often 
provide insufficient information regarding the incentives they put in place; 
many of the listed "incentives" do not involve either "technology" or 
"transfer"; and many of the listed incentives do not target LDC WTO Members.  
Overall, out of 384 unique programmes or policies reviewed, only 11% (42) 
appeared to target LDC WTO Members with a programme or policy that encourages 
technology transfer.

The results of this analysis suggest that a more robust monitoring mechanism for 
Article 66.2 is required. The objectives of such a mechanism would be twofold: 
first, to improve our capacity to assess how well Article 66.2 is achieving its 
intended purpose, and second, to improve technology flows to LDCs as a result. 
The 2001 Doha Ministerial Declaration mandated the TRIPS Council to “put in 
place a mechanism for ensuring the monitoring and full implementation of the 
[Article 66.2] obligations”. In subsequent TRIPS Council meetings, a number of 
LDC Members have asked for the creation of such a monitoring mechanism, but to 
date none has been established.  The policy brief outlines a proposal to create 
a Monitoring Mechanism Group that would track the provision of incentives over 
time based on a uniform reporting format, and assess how effectively the 
incentives were functioning to achieve technology flows to the LDCs.
Your comments on the paper are most welcome at: suerie_moon at hksphd.harvard.edu

Thank you,
Suerie Moon, MPA, PhD
Harvard School of Public Health/Harvard Kennedy School of Government
smoon at hsph.harvard.edu
suerie_moon at hksphd.harvard.edu

From: Jamie Love <james.love at keionline.org>
To: Ip-health <ip-health at lists.keionline.org>
Sent: Mon, June 13, 2011 7:07:17 AM
Subject: [Ip-health] White House and European Commission trade official oppose 
waiver of drug patents for Least Developed Countries (LDCs)

This policy brief, which includes some tables and graphs, and best
read from the web page.  I have include some parts of the text.


KEI Policy Brief 2011:1

In May 2011, USTR head Ambassador Ron Kirk wants Least Developed
Countries to "implement their TRIPS Agreement obligations for patent
and data protection for pharmaceutical products" by 2016.

. . . the Obama White House and Europe's top trade official, Karl De
Gucht, are now both opposing a proposal to extend a WTO deadline to
implement patent and test data rules on pharmaceutical drugs in "Least
Developed Countries."


"Least Developed Countries" are a subset of developing countries. The
UN refers to them as the "poorest and weakest" of the poor and weak.
The decision to target such countries is an appalling shift in policy.

"Some developing countries are making considerable progress, in terms
of governance and economic growth. Others are so poor and unstable the
term "developing" is inadequate to describe their perilous condition.
For the countries at the bottom, the UN created the category: "Least
Developed Countries" or LDCs. Traditionally, countries defined as LDCs
are eligible for special and differential treatment.

"To put things into perspective, Hati is the only country in Western
Hemisphere that qualifies as an LDC. Poor countries such as Bolivia
and Nicaragua are too well off to qualify. In Africa, Kenya, Cameroon
and Côte d’Ivoire are also too well off. In Asia, countries like
China, India, Thailand, Indonesia, and Malaysia are too well off.
LDC's are countries like Ethiopia, Sierra Leone, Rwanda or Cambodia.


"In 2009, these 48 countries had a combined population of 837 million,
and an average per capita income of $639, just 1.7 percent of the
average in high income countries. Collectively, LDC countries had
about 12.4 percent of the global population, but just .9 percent of
global income.


"Some 9.2 million persons in LDCs are living with HIV, nearly 28
percent of the global total of 33.3 million Beginning in 2003, as
donors began to fund treatment programs for AIDS, LDC countries began
to look like a market, and there has been a significant expansion of
patent filing in LDC countries. However, someone needs to pick up the
phone and talk to Ron Kirk and Karl De Gucht and explain who those
donors are (mostly taxpayers in the U.S. and Europe), and why it is a
mistake to drive up the price of AIDS drugs, at a moment when the
international community is struggling to meet commitments to fund HIV
treatment programs.


"Nils Daulaire of DHHS, Rajiv Shah of USAID, David Kappos of USPTO and
members of Congress were consulted on the USTR decision to push for
patents on pharmaceutical drugs in LDC countries.


There is an appalling disconnect between the policies embraced by USTR
and DG-Trade, and the interests of the taxpaying and voting public in
those countries. To the extent that taxpayers in the United States and
Europe are now responsible for funding global treatment efforts for
HIV/AIDs and other global health problems, high prices for HIV/AIDS
medicines are a negative, rather than a positive, even from the
perspective of trade policy.

As noted earlier, LDC countries represent just .9 percent of global
incomes. The benefits of ending the WTO LDC waiver on drug patents has
to be negative, for anyone who spends any time looking at the net
impact on taxpayers in the United States and Europe.

USTR and DG-Trade also need to recognize the moral and political
dimension of the HIV/AIDS crisis.

PEPFAR, the Global Fund and UNITAID are now considered successful
programs, generating considerable good will abroad, and popular with
elected officials in different political parties. U.S. taxpayers are
willing to endorse $48 billion in spending on PEPFAR, and European
taxpayers support billions in funding of the Global Fund and UNITAID.
Why should trade officials put these humanitarian programs at risk,
and who do they expect to benefit from an end of the WTO waiver on
drug patents in LDC countries?

What political failures in the United State and Europe have lead to
such failures of policy? Why did the White House back such a wrong
headed policy, and why didn't USAID, DHHS, Treasury, OMB, Commerce or
USPTO intervene? Why is the Congress, struggling to maintain spending
on foreign aid, oblivious to the ramifications of ending the LDC
waiver on drug patents? Why does DG-Trade not see the LDC waiver on
drug patents as essential for keeping EU commitments to achieving
goals regarding access to HIV drugs?


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