Examination of Witnesses (Questions 880
- 891)
TUESDAY 22 APRIL 2008
Mr Philippe Petit and Mr Antony Taubman
Q880 Lord Desai:
Even if I have signed the WTO and I am subject to TRIPS and whatever
the patent is, it is under the old TRIPS, there is still no way
of finding out whether I am subject to that patent or not as a
country?
Mr Taubman: It is ultimately possible, it is
just very resource intensive. When we work with civil society
on these issues, they point out that the private sector does have
the resources to pay people to spend a long time going through
the documents, but an NGO looking to procure drugs for their humanitarian
aid does not have the resources. It is about evening up access
to information. But in principle it is there, it is a public document.
Q881 Lord Desai:
I thought a patent was granted for all countries?
Mr Taubman: No, they are strictly territorial.
This is one of the major difficulties in understanding that we
find. For example some key patents are in force in the US and
Europe but not in many developing countries, so it is impossible
to legally assert patent rights in those countries.
Q882 Baroness Whitaker:
Quite a lot of anti-malarials are fake and the WHO is concerned
about this and uses the words "global public health crisis".
Whose responsibility is it to deal with counterfeit medicines?
Is it yours or WTO's? Is it Interpol's? If there is more than
one, who is the conductor of the orchestra?
Mr Petit: Counterfeiters are no longer isolated
craftsmen, but more and more large international mafias counterfeiting
medicines as well as cosmetics, agro-food products, automotive
and aircraft spare parts. As far as medicines are concerned, we
fully agree with WTO that the problem of counterfeit drugs is
a global public health crisis. Under the aegis of WHO and the
International Medical Products Anti-Counterfeiting Taskforce—IMPACT—which
was created in 2006 led by WHO (and our organisation is an active
participant in this taskforce with other international institutions,
such as the World Customs Organisation and Interpol and other
governmental and non-governmental institutions) WIPO contributes
with legislative assistance, education, capacity-building and
awareness-raising on this task of fighting counterfeit medicines,
which are a large danger for health and sometimes for life. We
have an action of capacity-building for judges, which we are the
only organisation to do. Sometimes judges are not very happy to
receive lessons from international organisations, but we organise
seminars with some judges who are already very competent who discuss
with their colleagues and train them in intellectual property
matters and fighting against counterfeiting. In the framework
of this IMPACT taskforce, led by WHO, there are draft principles
for national legislation against counterfeit medical products,
which should be approved by the next World Health Assembly in
May, next month. We contribute to this with the other organisations.
Q883 Baroness Whitaker:
That is very helpful. As you see, the brief wonders if there are
tensions between the work of your Advisory Committee on Enforcement
and your Development Agenda. I have to say that I am not absolutely
sure what tensions these might be, but maybe you can think of
some tensions.
Mr Petit: There is no tension between the work
on counterfeiting and the Development Agenda. There is one recommendation,
which in fact is the last of the 45 recommendations of the Development
Agenda, which deals with this matter and it is taken from the
terms of Article 7 of the TRIPS Agreement. It is in full accord
with the TRIPS Agreement, there is no contradiction and tension.
What is more important is that developing countries know that
counterfeit medicines are particularly bad for them. In fact,
the proportion of counterfeit drugs is higher in Africa than anywhere
else.
Q884 Baroness Whitaker:
Indeed?
Mr Petit: It is a threat to the health and lives
of the population. As a consequence of counterfeiting, companies
in industrialised countries may lose money but in developing countries
people may lose their lives, that is the difference. Developing
countries' governments are fully conscious of that. There is nothing
against development in combating counterfeiting for medicines;
on the contrary, it is part of it.
Q885 Baroness Whitaker:
I agree with you.
Mr Petit: The authorities of developing countries
need support to be able to control this plague.
Q886 Lord Desai:
This is about the structure of your income derived from registration
fees. People say that you do not have either the resources or
the incentives to deal with public interest matters and help.
Is that the case? Or do you feel that is not right, not a restriction
on your activities, your self-financing methods?
Mr Petit: Well, there is no contradiction between
our registration services which generate income and the rest of
the activities of the organisation, which are more classical UN
institution tasks contributing to the Millennium Development Goals.
There is no contradiction because the mandate of WIPO in its funding
convention is to promote the protection of intellectual property
and also to maintain services facilitating the international protection
of intellectual property and, where appropriate, providing for
registration in this field and publication of data concerning
this registration. That is Article 4. In fact, the international
systems of patents and trademarks, managed by the organisation,
are facilitating the international protection of intellectual
property. Through this system it is much easier and cheaper to
obtain an international patent or trademark protection. We should
remind you that at the beginning the Patent Cooperation Treaty,
commonly called the PCT, was not beneficial. It was supported
by the contributions of the Member States, but fortunately, or
unfortunately if you consider that was not the right thing, it
has been a great success, and now 48 per cent of all international
patents in the world go through our system. The fact is that the
two systems of registration now provide more than 90 per cent
of the budget of the organisation, even after a reduction of fees
in the last ten years of 30 per cent and an additional reduction
of five per cent in the last few weeks. The income is not growing
as fast as it had been for several years during the time of the
expansion of the PCT system. There are 138 country members of
the PCT system and it has achieved its full development. As we
have reduced the fees, the growth of income has become very, very
limited every year. To be very transparent, there is a dispute
between the Member States about the possible use of additional
income. In the past we have had five per cent growth of income.
Some Member States consider that there should not be such a growth:
most of the international organisations are financed by Member
States' contributions and are imposed as zero growth in their
budgets. For us, nobody decides in advance what the income of
the organisation will be, if we work well, we earn more. That
is a problem for some who consider that instead of having an increased
income we should reduce the fees so that there is no growth in
income. These are industrialised countries, of course. Some other
industrialised countries consider that, if there is an income
growth, it should be used for improving the registration systems
which generate the income. The developing countries, quite naturally,
consider that an additional income is very welcome and should
be used to finance more technical assistance and more cooperation
for development. We could say there is no contradiction; on the
contrary, developing countries are in favour of more income to
be used for more technical assistance and cooperation. This is
a debate which is not solved but which is for the Member States
to decide. In fact, innovative sources of financing, other than
Member States' contributions, are sought for by other UN institutions.
Maybe WIPO has inspired some jealously by giving an example, which
may explain some of the difficulties of the organisation, because
it has been too successful in a way. I should also mention that
developing countries are growing users of the system.
Q887 Lord Desai:
I have accessed your data system and it is very, very good.
Mr Petit: Korea has just passed France as the
fourth user of the PCT, our patent system, and China is presently
seventh after the UK, but every year China's participation grows
between 30 and 50 per cent, when the UK grows between three and
six per cent, so I suppose in 2008 China will pass the UK as a
user of the system. It shows that developing countries are not
opposed to the system of financing of the organisation. There
is also special financing for activities like the IGC, and you
mentioned that indigenous community delegates are financed, their
travel is paid, they are paid to come and participate at our meetings.
Q888 Chairman:
A final question. I am sure you are aware of the Indonesian case,
where they withheld the virus because of fear of exploitation
by pharmaceutical companies. What can you tell us about that?
Do you think that is going to happen again? Is that going to be
a perennial problem? Or is it one can we can deal with?
Mr Taubman: I know you are pressed for time
so, in that memorable phrase, here's one I prepared earlier!
Q889 Chairman:
You are giving us something to read on the plane?
Mr Taubman: Yes, indeed.
Q890 Chairman:
That is fine.
Mr Taubman: Some excess luggage for you! We
have done an enormous amount of work on the flu question for two
reasons: the first one being that it concerns the availability
of vaccines for the bulk of the community, so it could not be
more important; secondly, regrettably, once again, there are complex
technical questions that need to be worked through. We have done
that work for the WHO, having been commissioned by the WHO by
the Intergovernmental Committee that is working on these questions.
The basic questions, once again, filter down to what are the specific
patents of concern? Is there a pattern of taking the wild flu
strain and patenting it directly since there was a concern about
a misappropriation of the genetic resources (a flu virus is viewed
as a genetic resource, even though we want to get rid of it) is
that being taken and just patented as it is; if not, then what
is going on within the patent system? Then, at the other end of
the pipeline, there is a question, should a pandemic hit us, what
are the structures, the arrangements, for generating the vaccine
that will be needed in a blinding hurry? And what resources and
infrastructure are needed to respond; what patents apply to these
technologies? These two questions are quite distinct, but they
were conflated in the broad debate, understandably because there
is a lot of passionate concern about it. What we have done is
to essentially distinguish the issues and say, firstly, this is
what is going on in terms of who is patenting genetic materials
taken straight from the virus; and, secondly, these are the main
technologies used to produce vaccines, of course using the genetic
material as one input, and this is where they are held and these
are the obstacles to fast-track implementation of those technologies.
They are distinct issues. We have reported on that in great detail
to the WHO. You would not go to WIPO, to patent lawyers, to advise
you on your personal health. Equally, it is up to the WHO to work
out what technologies are going to be vital for vaccine production
in the future and what innovation structures are necessary to
plug the genetic material from the flu virus into the vaccine
innovation pipeline. It would be very foolish to ask us about
what vaccine technologies are needed. We provide the factual information
about what is going on in the patent system, what the legal implications
are, and what the options are for the patent system. We have done
a paper saying that these are the six or seven major models you
could look at; it is the job of health policymakers, appropriately,
to match that information to their needs.
Q891 Chairman:
Have you put that in the papers you have given us, these six or
seven options?
Mr Taubman: Yes.
Chairman: That is very useful. Thank
you very much indeed. We have kept you longer than anticipated,
we are very grateful. It is a complex area and it is very helpful
to have that background. As I say, you will get a transcript and
do make any factual corrections you wish to pick up or, if you
want to clarify or extend any information, please let us know.
Thank you very much again for coming along today.
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