ปรับปรุง : 7/03/2018
สถิติผู้เข้าชม:6521779 การเปิดหน้าเว็บ:9365507 Online User Last 1 hour (0 users)
Trans-Pacific Partnership Agreement: Did US Move Threaten Public Health?
12 กรกฎาคม 2554
Date: 12 July 2011
Source: Intellectual Property Watch
Civil society groups say a leaked document from regional free trade
negotiations between countries bordering the Pacific Ocean shows the United
States favouring giant pharmaceutical companies at the expense of public
health. Separately, the tobacco industry is allegedly also trying to push for a
clause to prevent plain packaging.
The Trans-Pacific Partnership agreement (TPP) is being negotiated by Australia,
Brunei, Chile, Malaysia, New Zealand, Peru, Singapore, the United States and
Vietnam. The negotiation is being conducted behind closed doors. The aim is to
"set the outlines" of an agreement by the November meeting of the Asia-Pacific
Economic Cooperation (APEC), according to the US Trade Representative`s office
website<http://www.ustr.gov/tpp>
[1].
An alleged leaked negotiating paper<http://www.ip-watch.org/weblog/wp-content/uploads/2011/07/Leaked-US-TPPA-paper-on-eliminating-pre-grant-opposition.pdf>
[2] [pdf] from the United States sought to challenge pre-grant opposition to
patent applications from countries signing the agreement, saying that it is
lengthy, costly and prone to abuse. The document, purportedly circulated
recently to negotiators, presents the US examination procedures, which include
prior art submission and protest procedures, as an alternative to pre-grant
opposition found in some parties` current laws.
Pre-grant opposition allows a patent to be challenged before it is being
granted. According to several civil society groups, pre-grant opposition
procedures allow "any person, including researchers, NGOs, health
organizations, and market competitors to oppose a patent application by
submitting information and analysis to patent examiners."
As such, the civil society groups said, pre-grant opposition prevents undue
pharmaceutical monopolies, which "contribute little to innovation but
greatly to price."
The briefing memo was written by Public Citizen, the Health Global Access
Project, the Initiative for Medicine, Access and Knowledge, and the Third World
Network.
It is not clear from the leaded document whether the US outright opposes
pre-grant opposition, or if it simply prefers to leave it to each country to
choose its own practice.
The Indian patent law has been under suspicion by some of not satisfying the
terms of the World Trade Organization Agreement on Trade-Related Aspects of
Intellectual Property Rights (TRIPS) because of Section 3(d) of the Indian
Patent Act, which tries to prevent patent ever-greening and defines what is not
patentable.
According to the civil society groups, "pre-grant oppositions filed in
India by health groups have warded off lengthy monopolies based on follow-on
patents filed for HIV/AIDS medicines, including lamivudine/zidovudine,
paediatric nevirapine, tenofovir, darunavir, and recently heat-stable lopinavir/ritonavir."
Substandard patent applications are a persistent problem, they said, and
pre-grant opposition increases certainty for business decisions and improves
regulatory efficiency and accuracy. The leaked US document said that third
parties can overburden "already strapped patent offices, decrease the
efficiency of examination, and delay the granting of pending rights."
The TPP has been under negotiation since March 2010. Seven rounds of
negotiations have taken place, the last one in Ho Chi Minh City, Vietnam, from
15-24 June. According to the Australian government<http://www.dfat.gov.au/fta/tpp/110630-tpp-stakeholder-update-7.html>
[4], TPP parties made steady progress and "draft text is now on the table
in each of the negotiating groups."
"Parties worked to consolidate existing text and considered new text
proposals in various working groups, including intellectual property, services,
transparency, telecommunications, customs and environment. In a range of areas
it is expected that further textual proposals will be tabled," the
Australian Department of Foreign Affairs website said.
Public Health, Tobacco Plain Packaging
The TPP has stirred significant debate over the course of negotiations. NGOs in
March called for a United Nations intervention into the negotiations (IPW,
Public Health, 28 March 2011<http://www.ip-watch.org/weblog/2011/03/28/call-issued-for-un-intervention-in-trans-pacific-regional-trade-pact/>
[5]). A 22 March letter written by a multi-country set of nongovernmental
organisations and academics was sent to Anand Grover, the UN special rapporteur
on the right of everyone to the enjoyment of the highest attainable standard of
health. The letter warned against intellectual property provisions in the trade
agreement.
According to other sources, such as Australian academics writing in a 7 July
blog, here<http://theconversation.edu.au/big-tobacco-v-australia-dangers-looming-in-the-trans-pacific-partnership-agreement-1943>
[6], the TPP, by creating binding obligations on member countries, could also
limit Australia`s capacity to regulate for public health. In particular, it
could endanger the Australian`s tobacco plain packaging legislation, the
authors said. The tobacco industry may be lobbying for the inclusion in the TPP
of a clause on investment that would allow them to legally challenge any plain
packaging legislation, according to sources. Industry sources were not reached
to confirm this.
Philip Morris Asia announced on 27 June<http://www.pmi.com/eng/media_center/press_releases/pages/PM_Asia_plain_packaging.aspx>
[7] that "it has served a notice of claim on the Australian government,
stating its intention to pursue legal action over plans to introduce plain
packaging in Australia for tobacco products." This legal action is taken
under the Australian Bilateral Investment Treaty with Hong Kong.
Philip Morris, which describes itself as the leading
international tobacco company, claims that "the forced removal of
trademarks and other valuable intellectual property is a clear violation of the
terms of the bilateral investment treaty between Australia and Hong-Kong."
Philip Morris said that the notice served on the Australian government
"begins a mandatory period of three months during which the parties must
attempt to negotiate a satisfactory outcome."
The issue of the Australian draft law on tobacco plain packaging was also
discussed at the World Trade Organization, during the last Trade-Related
Aspects of Intellectual Property Rights (TRIPS) Council (IPW, WTO, 16 June
2011<http://www.ip-watch.org/weblog/2011/06/16/plain-packaging-for-tobacco-puts-wto-members-in-a-quandary/>
[8]). The Dominican Republic supported by several other developing countries,
challenged the Australian legislation as being incompatible with the Australia`s
TRIPS obligations. Industry circulated material to governments participating in
the WTO meeting.
According to the Australian Fair Trade and Investment Network<http://aftinet.org.au/cms/trans-pacific-partnership-agreement/trans-pacific-partnership-agreement>
[9], a civil society network, the next rounds of negotiations will take place
on 6-11 September in San Francisco, US, followed by 24-28 October in Lima,
Peru, and at the APEC meeting in November in Honolulu, Hawaii, US. [Update:
another source has indicated that the next meeting may be moved from San
Francisco.]