PATENTS ON LIFE AND PATENTS ON MEDICINES: THE TRIPS AGREEMENT

Until the Uruguay Round, most countries’ patent systems did not cover living organisms. In fact, many actually denied patents on foods and medicines on grounds these socially valuable products ought not to be privatized or priced out of the reach of the general public.

Encouraged by an "Intellectual Property Committee" consisting of major pharma- ceutical companies, the United States Office of the Trade Representative succeeded in drafting a Uruguay Round Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs) that strengthens the private monopoly rights of the drug industry, and obligates all WTO Members to provide patents for genetically engineered organisms and micro-organisms and to provide either patents or a "sui generis" ("of its own kind") system for protecting the breeders of plant varieties.

Developing countries were granted longer phase-in periods, vague assurances that technology transfer would be forthcoming, and other "special and differential treatment" negotiated to assist them in complying with TRIPs requirements. The agreement is subject to biennial review.

In the draft Ministerial Declaration, a large group of developing countries have insisted on language to "operationalize" technology transfer and the other concessions achieved during the Uruguay Round.

Their text also proposes amending TRIPs so that all living organisms and their parts cannot be patented and so that the list of exceptions to patentability includes the list of essential drugs identified by the World Health Organization. In addition, consistent with the Convention on Biological Diversity and the International Undertaking on Plant Genetic Resources, their proposal would "ensure the protection of innovations of indigenous and local farming communities; the continuation of traditional farming processes including the right to use, exchange and save seeds, and promote food security."

On November 11, however, both the United States and European Union rejected the developing countries’ proposals on patenting and references to other international agreements in the draft text.

Non-governmental organizations from around the world responded to this news with letters to President Clinton and the U.S. Trade Representative, urging the delegation to "soften" its position on TRIPs. "As we enter the 21st century," states the letter, signed by more than 250 groups and individuals from 47 countries, "it is imperative that global coherence refer not only to coherence among the WTO, IMF and World Bank; equally if not more important for global food security, health and welfare is coherence among the WTO, other treaty bodies and the many United Nations agencies… If the WTO is to preserve its authority as an arbiter of international trade, it must recognize that other international laws and understandings must be respected."

More specifically, the NGOs called for amending TRIPs to expand the list of exceptions to patentability to include living organisms and their parts as well as the list of essential drugs published by the World Health Organization; to ensure the transfer of technology on fair and mutually advantageous terms; and to establish transitional arrangements that enable developing countries, especially the least-developed, to comply without jeopardizing their right to development and without counteracting their obligations under other international agreements, particularly the Convention on Biological Diversity.

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