1. Acceptance of the Protocol Amending the TRIPS Agreement
South Africa’s
Acceptance of the Protocol Amending the TRIPS Agreement
Xolelwa Mlumbi- Peter
DDG: ITED
24 November 2015

2. BACKGROUND
The Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) is an international agreement administered by the WTO.
TRIPS is the most important and comprehensive agreement dealing with IP rights.
TRIPS agreement introduced intellectual property law into the international trading system for the first time.
South Africa is member of TRIPS because of the Single Undertaking Rule in the WTO.

3. KEY OBJECTIVES OF THE FLEXIBILITY
Addresses the impact of the TRIPS Agreement on access to drugs, local manufacturing capacity and the development of new drugs.
Africa Group proposal to ensure that the TRIPS Agreement does not undermine the legitimate right of WTO Members to formulate their own public health policies.
Emphasis on access to medicines and R&D for prevention and treatment of diseases predominantly affecting people in developing and LDCs.
Developing countries cannot afford to pay the prices asked by the developed countries’ pharmaceutical companies for the drugs which these companies have developed and produced, which often include the only effective treatment for national health emergencies such as the HIV/Aids pandemic.
Parallel imports are imports of a patented or trademarked product from a country where it is already marketed. For example, if 100 units of Bayer's Malaria drugs costs R 200 in South Africa, but in India Bayer sells the same drug for R 50 (owing to local generic competition). Mozambique can import the product from India without Bayer's consent.
Compulsory licensing is when a government allows someone else (Generic Company) to produce the patented product (drug) or process without the consent of the patent owner. This could happen if there is a national health emergency and the patent owner of the only effective treatment for pendemics such as the HIV/Aids or Ebola sells the drug at astronomically high prices which the Government cannot afford to pay.

4. KEY OBJECTIVES OF THE FLEXIBILITY
Initial resistance by developed countries (US, Japan, Switzerland, Australia and Canada) stressing the importance of intellectual property protection for R&D and that IP contributes to public health.
Despite initial resistance Doha Declaration was adopted by consensus.
Recognizes that the high prices of medicines caused by patent protection are part of the grave problems that afflict developing countries and LDCs and is a "concern" that needs to be addressed.
Developing countries cannot afford to pay the prices asked by the developed countries’ pharmaceutical companies for the drugs which these companies have developed and produced, which often include the only effective treatment for national health emergencies such as the HIV/Aids pandemic.
Parallel imports are imports of a patented or trademarked product from a country where it is already marketed. For example, if 100 units of Bayer's Malaria drugs costs R 200 in South Africa, but in India Bayer sells the same drug for R 50 (owing to local generic competition). Mozambique can import the product from India without Bayer's consent.
Compulsory licensing is when a government allows someone else (Generic Company) to produce the patented product (drug) or process without the consent of the patent owner. This could happen if there is a national health emergency and the patent owner of the only effective treatment for pendemics such as the HIV/Aids or Ebola sells the drug at astronomically high prices which the Government cannot afford to pay.

5. 2001 DECLARATION
November 2001 Doha Meeting, developing countries demanded a reassessment of TRIPS
Purpose:
(1) address high prices of medicines charged by developed countries’ pharmaceutical companies.
(2) ensure that developing countries could either produce affordable generic drugs (compulsory licensing) or buy them from elsewhere (parallel imports) at reasonable prices, especially in a national health emergency situation.
Developing countries cannot afford to pay the prices asked by the developed countries’ pharmaceutical companies for the drugs which these companies have developed and produced, which often include the only effective treatment for national health emergencies such as the HIV/Aids pandemic.
Parallel imports are imports of a patented or trademarked product from a country where it is already marketed. For example, if 100 units of Bayer's Malaria drugs costs R 200 in South Africa, but in India Bayer sells the same drug for R 50 (owing to local generic competition). Mozambique can import the product from India without Bayer's consent.
Compulsory licensing is when a government allows someone else (Generic Company) to produce the patented product (drug) or process without the consent of the patent owner. This could happen if there is a national health emergency and the patent owner of the only effective treatment for pendemics such as the HIV/Aids or Ebola sells the drug at astronomically high prices which the Government cannot afford to pay.

6. DECLARATION CONTENT
Recognition of the gravity of the public health problems...,especially those resulting from HIV/AIDS, tuberculosis, malaria and other epidemics
Recognition that intellectual property protection is important for the development of new medicines and recognise concerns about its effects on prices
Agreement that the TRIPS Agreement does not and should not prevent Members from taking measures to protect public health.
Reaffirmation that TRIPS can and should be interpreted and implemented in a manner supportive of Members’ right to protect public health and, in particular, to promote access to medicines for all.

7. DECLARATION CONTENT cont..
Clarifies that “public health crises” can represent “a national emergency or other circumstances of extreme urgency”, and that an “emergency” may be either a short-term problem, or a long-lasting situation.
Places the burden on a complaining Member to prove that an emergency or urgency does not exist.
It is implicit within the Declaration that differentiation in patent rules may be necessary to protect public health - recognition that public health-related patents may be treated differently from other patents.
Makes it easier for developing countries to adopt measures necessary to ensure access to health care without the fear of being dragged into a legal battle.

8. DECLARATION CONTENT cont..
Gives Members more flexibility:
in utilising parallel import mechanism and in the granting of compulsory licences.
to determine through their own national legislations the grounds upon which such licences are to be granted,
to decide what constitutes a national public health emergency.
to cover any “public health problem” – not limited to specific diseases
Though access to medicines was preoccupation -covers any product, method or technology for health care. Applies to pharmaceutical products, processes and uses, surgical, therapeutic and diagnostic methods, diagnostic kits as well as medical equipment.

9. DECEMBER 2005 DECISION
2003 decision which gives effect to the 2001 Declaration and calls for the amendment of the TRIPS Agreement
2005 Decision finds its basis from paragraph 11 of August 2003 Decision which instructed TRIPS Council to initiate work on amendment by end 2003 with a view to its adoption within 6 months
Adopts Protocol Amending the TRIPS Agreement and submits it to Members for acceptance
Protocol open for acceptance until 1/12/2007
Period extended a number of times due to low number of instruments of acceptance deposited with the WTO Secretariat
Period extended a number of times due to low number of instruments of acceptance deposited with the WTO Secretariat which is why its important for us to ratify.

10. DECEMBER 2005 DECISION cont…
Latest deadline expires 31/12/2015 but will be extended at MC 10
Takes effect upon acceptance by two thirds of membership
Period extended a number of times due to low number of instruments of acceptance deposited with the WTO Secretariat which is why its important for us to ratify.

11. CONSTITUTION
Section 27 (1): Everyone has the right to have access to (a) health care services, including reproductive health care;
27 (2): The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of each of these rights.
Section 27 therefore places a positive obligation on the State to accept the 2005 Protocol
Acceptance by SA will contribute to the current number of acceptances in order to reach the two thirds majority threshold for the Protocol to come into force (Article X iii)
Article X(iii) WTO Agreement
Amendments to provisions of this Agreement, or of the Multilateral Trade Agreements in Annexes 1A and 1C, other than those listed in paragraphs 2 and 6, of a nature that would alter the rights and obligations of the Members, shall take effect for the Members that have accepted them upon acceptance by two thirds of the Members and thereafter for each other Member upon acceptance by it. The Ministerial Conference may decide by a three-fourths majority of the Members that any amendment made effective under this paragraph is of such a nature that any Member which has not accepted it within a period specified by the Ministerial Conference in each case shall be free to withdraw from the WTO or to remain a Member with the consent of the Ministerial Conference.

12. CONSTITUTION cont…. WTO Agreement falls under section 231(2)
Section 231(2): An international agreement binds the Republic only after it has been approved by resolution in both the National Assembly and the National Council of Provinces, unless it is an agreement referred to in subsection (3).
Any amendment to an agreement referred to above will also have to follow the same process
Legal opinions from DIRCO and DoJ confirm this position
Instrument of Acceptance to be deposited with the WTO to confirm our acceptance of the amendment

13. BENEFITS
Government will be able to fully implement flexibilities provided by such amendments
Full and effective implementation of flexibilities will enable Government to provide access to cheaper and better health care
Work on the IP policy review already underway to come up with proposals on how to effectively take advantage and implement these flexibilities
Policy and Legislation Unit deals with IP policy review