[Ip-health] June 2017 - WTO TRIPS Council - Statement of India on IP and the Public Interest - Compulsory Licensing

Thiru Balasubramaniam thiru at keionline.org
Wed Jun 14 03:58:27 PDT 2017


As reported by Knowledge Ecology International (KEI), on 6 June 2017, the
World Trade Organization (WTO), published a paper tabled by Brazil, China,
Fiji, India, and South Africa "Intellectual Property and the Public Interest
<https://www.keionline.org/node/2800>." In their communication
(IP/C/W/630), the proponents called for a series of discussions at the WTO
TRIPS Council on Intellectual Property and the Public Interest. Brazil,
China, Fiji, India, and South Africa proposed compulsory licensing as the
first theme of IP and the Public Interest discussions at the TRIPS Council
session for 13-14 June 2017.

On Wednesday, 14 June 2017, India delivered the following statement on
compulsory licensing. In addition to recounting its experience in issuing a
compulsory license on Bayer's cancer drug, Nexavar, in March 2012; India
recalled state practices from Italy and the United States of America.

Madame Chair, now, I would like to provide brief details of use of CL in
few other Members. According to an article entitled “Compulsory licensing
of patented pharmaceutical inventions: evaluating the options” by Jerome H.
Reichman published in the Journal of Law, Medicine and Ethics in 2009, 37
(2): 247-263, the United States threatened Bayer with a compulsory license
on ciprofloxacin (Cipro) in 2001, which the U.S. intended to stockpile as a
defense against anthrax. Bayer drastically lowered its price in response.
The Italian Competition Law authorities issued compulsory licenses against
Merck, on certain antibiotics, for abuse of a dominant position in 2005;
against Glaxo, for refusal to license a patented migraine headache drug in
2006; and against Merck again for a refusal to license a treatment for
baldness in 2008.

Madame Chair, in Apple Vs Motorola case filed in in the United States
District Court for the Northern District of Illinois (Eastern Division),
Judge Richard Posner, in June 2012, while dismissing with prejudice the
patent infringement suits cited the decision in eBay Inc. v. MercExchange,
L.L.C and specifically noted that a "compulsory license with ongoing
royalty is likely to be a superior remedy in a case like this because of
the frequent disproportion between harm to the patentee from infringement
and harm to the infringer and to the public from an injunction".

The full statement can be found here: https://www.keionline.org/node/2806

Thiru Balasubramaniam
Geneva Representative
Knowledge Ecology International
41 22 791 6727
thiru at keionline.org

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