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Avian Flu, Health vs. IP Protection

Over at O’Reilly Radar, a question came up as to whether Roche’s patent on Tamiflu should be respected if, in the event of a pandemic, people were dying on a large scale due to an inability for Roche to produce Tamiflu in sufficient quantities.

James Love of recently pointed out that the WTO made an exception for a situation like this, allowing importation of medicines from foreign countries in violation of local patent licenses in the case of an emergency, in a 30 August 2003 decision:

Your country would benefit from importing generic medicines produced under a compulsory license, in order to build up adequate stockpiles or to obtain needed medicines in the event of a crisis.

However, many developed-world countries have explicitly made a commitment never to use this limited TRIPS waiver, namely the following:

Australia, Austria, Belgium, Canada, Denmark, Finland, France, Germany, Greece, Iceland, Ireland, Italy, Japan, Luxembourg, Netherlands, New Zealand, Norway, Portugal, Spain, Sweden, Switzerland, United Kingdom and the US.

Another 10 countries about to join the EU said they would only use the system to import in national emergencies or other circumstances of extreme urgency, and would not import once they had joined the EU: Czech Republic, Cyprus, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Slovak Republic and Slovenia.

So there you have it; the trade representatives for many developed-world countries took some kind of ‘strong IP’ high moral stand, and gave up this ability. I’ll bet national health authorities are, right now, wandering government halls around the world, looking for trade representative asses to kick…