(Sept. 14, 2016) The High Level Panel’s (HLP) Final Report correctly identifies a high degree of policy incoherence between the interests of inventors – protected by national and international intellectual property law and trade agreements – and supervening rights to individual and public health.
We applaud the Panel’s most proactive recommendation, which calls for the negotiation of a binding international medical research and development (R&D) convention that would increase and coordinate governments’ investments in R&D and delink the costs of R&D from end prices. A policy of this nature would go a long way toward promoting access to life saving medicines.
We’re also pleased that the Panel concludes that countries “must” adopt TRIPS flexibilities, including high standards of patentability and easier-to-use compulsory license mechanisms, and that “governments and the private sector must refrain from explicit or implicit threats, tactics or strategies that undermine the right of World Trade Organization (WTO) Members to use Trade-Related Aspects of Intellectual Property Rights (TRIPS) flexibilities.”
However, the Panel’s Report falls short by failing to unequivocally condemn trade agreements and national laws with TRIPS-plus IP protection and enforcement mechanisms and by not calling for revision of any trade agreements and laws that are TRIPS-plus or undermine TRIPS flexibilities. Similarly, at the last minute, a minority of HLP Members rejected a recommendation advanced by Health GAP and other proponents and the majority of panel members for near automatic issuance of compulsory licenses on essential health technologies. These licenses would allow generic producers to manufacture and market generic equivalents premised on payment of adequate remuneration, typically percentage royalties, to patent rightholders.
Unfortunately, while the Panel’s report also recommends specific progress on transparency and more open access to the fruits of university and publicly supported research, the Panel was unable to reach consensus on bold recommendations concerning the limits of the WTO’s Agreement on TRIPS framework to protect access to medicines. Instead, the Panel opined that the right of access to medicines and other health technologies could be resolved within the existing framework of TRIPS flexibilities – a premise that we strongly reject.
Failing to fully rise to the challenge of redressing unmet health needs, the Panel’s Final Report over-valorizes industry’s voluntary measures and urges countries to adopt flexibilities that partially tame but do not defang monopolies on medicines. More far reaching proposals by Health GAP and partners called for dismantling the existing intellectual property regime on medicines and other health technologies and adopting new incentive systems for targeted research and development while guaranteeing more affordable access generics sold at or near the cost of production. Regrettably, we will be left with a complex web of exclusive rights that strains public and private resources and that risks continued rationing and even denial of access to life-saving technologies.
That said, we must urge the UN and countries to act quickly to advance the modest reform proposals contained in the Final Report as they continue to explore even more transformative interventions in the future, many of which were contained in submissions to the HLP.