Asia-Pacific Health Groups Raise concerns over intellectual property and investment provisions in RCEP negotiations
Call on RCEP countries to protect public health and access to medicines as 7th Round of negotiations gets underway in Thailand this week.
Bangkok, 9 February 2015 – As negotiators from 16 countries in the Asia-Pacific region, including all ASEAN countries, China and India, meet in Thailand this week for the 7th round of negotiations of the Regional Comprehensive Economic Partnership Agreement (RCEP), groups fighting for access to affordable health care for all see their hopes threatened by the potential adverse impact of these negotiations, particularly on issues related to intellectual property and investment protection.
“We are extremely alarmed at reports that in the RCEP negotiations Japan and South Korea are demanding intellectual property protections from the developing countries of ASEAN and from India and China beyond that required by the World Trade Organisation (WTO),” said Shiba Phurailatpam of Asia Pacific Network of people living with HIV and AIDS (APN+). “Across the region our members and networks rely on affordable generic medicines for their treatment. With only one in three people in the Asia-Pacific on HIV treatment, any provisions that hamper generic production and supply of affordable medicines will be a direct threat to the lives and health of millions in the region,” he said.
Reports indicate that Japan and South Korea may be tabling demands beyond those required by the WTO (TRIPS provisions), such as patent term extension (patents longer than 20 years) and data exclusivity, that prevents governments from relying on clinical trial data to register generic versions of medicines even if they are off-patent, their patents have expired or are revoked & complicates the issuance of compulsory licences. Sources suggest that some IP proposals being put forward for the RCEP negotiations may also include a full range of TRIPS-plus provisions including patentability criteria, patent office procedures and enforcement measures including the detention of generic medicines in transit.
“Developing countries in the Asia-Pacific region are already in a precarious situation. They are implementing their WTO obligation by granting 20 year patents, they are losing access to foreign funding which has been the backbone of HIV treatment programmes due to being categorized as middle-income countries by the World Bank and MNC pharmaceutical companies are withdrawing lower prices for their medicines or leaving them out of voluntary licenses with generic companies,” continued Phurailatpam. “Longer and greater monopolies on medicines as is reportedly being demanded in the RCEP negotiations will only make a bad situation worse.”
Among the RCEP developing countries are those who have taken the leadership in balancing their WTO obligations with public health and access to medicines. Malaysia (2003), Indonesia (2004, 2007 and 2012), Thailand (2006 and 2008) and India (2012) have issued compulsory licenses to ensure generic competition for medicines for HIV, heart disease and cancer.
“The reason of these actions is clear,” says Anand Chabungbam from the Asian Network of People who Use Drugs (ANPUD). “In 2001, the prices of AIDS medicines dropped from $15000 to $350 per person per year because of competition from generic medicines. India, one of the RCEP countries supplies 80% of adult and 90% of pediatric AIDS drugs to the developing world. Developing and least developed countries in the RCEP negotiations must preserve their ability to take legal actions to ensure access to generic medicines,” Chabungbam said.
“It is not only HIV medicine prices that are of concern to us. People living with hepatitis C in the region are challenging US MNC Gilead’s patent applications on the new medicine sofosbuvir, relying on the strict standards of patentability in many of the Asia-Pacific countries. With Gilead leaving countries with high Hepatitis C burdens like China, Thailand, Malaysia and the Philippines out of voluntary licenses with generic companies, this may be our only hope for access to affordable generic versions,” continues Chabungbam. “But it is these strict patentability standards that may be diluted by the demands of some developed countries in the RCEP negotiations,” Chabungbam said.
Chabungbam is referring to countries like India and the Philippines that have included statutory provisions in their laws that incorporate strict patentability criteria including a prohibition on evergreening – the practice of patent holders to extend monopolies on medicines by filing successive and overlapping patents on new forms and new uses of old medicines. In Thailand, the patent office has recently adopted stricter patent examination guidelines for pharmaceuticals. However, reports suggest that some of the RCEP proposals on IP may weaken such provisions.
“At APNSW, we are alarmed that the RCEP negotiations would create barriers for access to generic medicines for HIV, hepatitis C, cancer, heart disease and many more illnesses,” said Kay Thi from Asia Pacific Network of Sex Workers (APNSW). “Our members in least developed countries like Myanmar and Cambodia have repeatedly raised concerns over access to generic medicines in light of ongoing free trade agreement (FTA) negotiations. We trust that the RCEP negotiations will not in any manner affect the full flexibility of Least Developed Countries under the WTO not to adopt ANY intellectual property protections till 2021,” Kay Thi said.
Among the RCEP negotiating countries are three Least Developed Countries or LDCs who have recently been granted an extension till 2021 to choose whether or not to protect any forms of intellectual property covered by the WTO TRIPS Agreement. According to UNDP and UNAIDS, this TRIPS transition period is crucial to allow the development of local manufacturing of medicines as well as the development of a broad technology base with freer transfer of technologies. It is unclear whether the RCEP negotiations factor in the full flexibility related to the freedom of LDCS to choose whether or not to protect any aspects of intellectual property in TRIPS as well as any further extensions that the LDCs may receive in the coming years.
“The RCEP negotiations should set an example by prioritising health over corporate or trade interests. RCEP should set a positive agenda on public health and access to medicines by supporting the use of legal actions by developing countries to ensure access to medicines, promoting technology transfer and local production of generic medicines and identifying and committing resources to the public health research and development needs of developing and least developed countries in the region. We are also calling on the RCEP countries to release the text that is being negotiated on intellectual property and investment and hold wide spread public consultations to ensure that this trade agreement does not undermine public health and access to medicines,” added Phurailatpam.