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Least developed countries ask for more time for TRIPs

The TRIPS Council is considering whether to exempt least developed countries from implementing certain parts of the TRIPS Agreement indefinitely

The TRIPs Council held a meeting on June 9 and June 10 to discuss a request submitted in February by Bangladesh on behalf of least developed country members of the WTO (LDCs), of which 70% are African countries.

At the meeting Uganda, which played a coordinating role, explained the request, while Lesotho presented on behalf of the Africa group.

South Africa, Nepal, Myanmar, Barbados (on behalf of ACP group), Cambodia, Tanzania, India, Norway, Mali, Cuba, Brazil, Yemen, Argentina, Togo, Serra Leone, China, Haiti, Congo, Chile, Uruguay, Rwanda, Holy See and WHO were all in support.

Exemption from protecting pharmaceuticals

At present, LDCs do not have to implement Sections 5 and 7 of Part II - which set out rules for patent protection for products or processes and protection for confidential information respectively. This is because the TRIPS Council on June 27 2002 granted LDCs a transitional period until January 1 2016, after which they have to implement these two sections in relation to pharmaceutical products. This is in accordance with the Doha Declaration of 2001.

LDCs now ask for this transitional period to be deferred indefinitely (that is, until they graduate from LDC status). They also requested the TRIPs Council to recommend to the General Council a waiver from the obligations of Articles 70.8 and 70.9 (which deals with patent applications during the transitional period, also referred to as mailbox provision, and exclusive marketing right for patent applicants, respectively).

Reason for the request

LDCS argued that they continue to face serious, disproportionate public health challenges, and thus should not be obliged to accord patent protection and other related rights to pharmaceutical products. UNAIDS, UNDP and a range of NGOs backed their request.

Entitlement to make a request

Article 66.1 of the TRIPS Agreement allows a least developed country member to ask for more time to implement the Agreement (except Articles 3, 4 and 5).

This provision recognises that LDCs face various development challenges. The Doha Declaration introduced a de facto transitional arrangement specific to the most important provisions for patentees in the pharmaceutical sector. Therefore LDCs have two transitional periods which they may seek to extend.

Previous request granted

The last time LDCs, as a group, made a similar request under Article 66.1 was in 2012 when they sought an indefinite exemption from implementing the general Agreement. They argued that they continue to face numerous challenges including underdeveloped technology base and public health issues.

The Council on June 11 2013 granted that request with an extension until July 1 2021, or optimistically, until a member ceases to be classed as LDC, whichever date is earlier.

The TRIPs Council also stated that this affected neither its 2002 decision nor the right of LDCs to utilise Article 66.1.

Council’s decision awaited

The TRIPs Council is now considering this request, and consultations will be held in the coming months. Perhaps further clarification is required on the legal effect of the 2013 decision and the present request. A decision may be made at the next TRIPS Council meeting in October.

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