1 Free trade agreements – Australia’s experience Sanya Smith Third World Network 25 August 2006 Bangkok

2 Background Australia rejected a US free trade agreement (FTA) twice before finally accepting it Australia is a net intellectual property importer so it was not in its interests to have strong intellectual property protection About 90% of patents granted in Australia are to foreigners Australia did not have and did not want data exclusivity or linkage

3 How Australia got data exclusivity (DE) Australia was forced by Special 301 pressure by the USA to introduce 5 years of DE Australia could have revoked this But then when Australia agreed to a US FTA the DE was locked in In FTA negotiations, USA wanted 8 years of DE Australia only gave 5 years of DE because of public pressure on the Australian Government Now if Australia does not grant 5 years of DE, US can ultimately raise tariffs against any Australian export

4 Impact of DE Before DE, Australian generic manufacturers were using the originator’s data to launch immediately If there was no patent If there was a patent (because they changed the medicine slightly so it did not infringe the patent, but was still the same medicine for the purposes of registration and so could still use the originator’s data to register)  generic competition and cheaper prices from an early stage After DE was introduced, generics had to wait 5 years before they could market their version  prices were higher for longer

5 Linkage between patent status and medicine registration Prior to the USFTA, Australia did not have linkage So if Australia could issue effective compulsory licences The US FTA forced Australia to have linkage

6 Attempts to make linkage less worse Opposition party in Australia tried to implement the USFTA linkage provision in a way that was less bad for public health by passing amendments to domestic implementing legislation While Australian Parliament was considering it, US complained and threatened to stop FTA It was an empty threat, FTA continued After the FTA started, the US continued to press for repeal of the amendments Australian Government was planning to repeal the pro-public health amendments but appears to have given up for the moment due to public outcry

7 Thank you Questions to