19 December 2006

Swiss Initiative Seeks To Dispel “Black-And-White” View Of Patents

posted by Tove Iren S. Gerhardsen @ 10:42 am
Intellectual Prperty Watch
By Tove Iren S. Gerhardsen

Switzerland has begun a new kind of collaboration at the national level with the aim of moving beyond the old “patents are good/patents are bad” debate, particularly when it comes to intellectual property and public health, according to officials.

Intellectual Property Watch recently spoke with Felix Addor and Gaudenz Silberschmidt of the Swiss government about the initiative, which is of particular interest in light of a newly established World Health Organization (WHO) intergovernmental working group.

The Swiss national initiative and the WHO project - the Intergovernmental Working Group On Public Health, Innovation and Intellectual Property (IGWG) - are somewhat linked as the Swiss have also played a key role in the group. The interview took place during the early December IGWG meeting.

Addor, deputy director general and head of legal and international affairs of the Swiss Federal Institute of Intellectual Property, said that an inter-departmental expert group - which includes people from the ministries responsible for economics and trade, health research, development, human rights, foreign affairs, drug approvals and intellectual property - covers a broad range of issues and has managed to expand the debate on IP and health in particular.

It includes the view and expertise from all of these departments, “to properly reflect all aspects of the problematic going beyond the usual IP against health debate,” Addor said.

Addor said that officials from various departments tend to argue from their individual perceptions, and he and Silberschmidt, vice director and head of international affairs at the Swiss Federal Office of Public Health, met to discuss how to “change this and ensure that the different actors listen to each other, and to look into the arguments and interests of the other departments.”

“Many do not listen actively to the other side,” Addor said, adding that the “same is true for Switzerland. That is why we have set up this group to build trust between the different players in the Swiss Federal Administration and to get all national experts around one table.”

Addor linked it to a picture of people visiting each other, where instead of having the defences up, the visitors bring gifts, ask questions and listen to each other. In the group, Addor said they “try to behave [as if we] are visitors,” he said.

Model of Policy Coherence?

The idea is to get policy coherence in terms of Switzerland’s position in forums such as the World Trade Organization (WTO), the World Intellectual Property Organization (WIPO), the United Nations in general, and WHO, they said.

Addor and Silberschmidt are now co-chairing the group, which so far has met five times. Addor said that the idea is to “enlarge the cake and look for a holistic and sustainable solution” to issues related to IP.

Addor said that while for many years the impression was either, “IP is good” and “don’t discuss it,” or, “IP is bad and let’s abolish the patent system.” Now the group is focusing on “how to get to some agreed solution” by asking questions. This is a key to success, he said.

Prompted by the CIPIH

This cross-departmental initiative is of particular interest these days with the recent debate on innovation, public health and intellectual property at the first meeting of the WHO intergovernmental working group on 4-8 December, which took forward the work of the WHO Commission on Intellectual Property Rights, Innovation and Public Health (CIPIH) (IPW, Public Health, 11 December 2006). The Swiss group was in fact partly a “consequence of the CIPIH”, Addor said.

The CIPIH consisted of 10 independent experts and was chaired by former Swiss President, Ruth Dreifuss. In April 2006, the CIPIH published its recommendations on how the interfaces of these three areas could be used to enhance medicine research and development, particularly for medicines predominantly affecting developing countries (IPW, Public Health, 3 April 2006).

Based on the CIPIH report as well as a resolution on a global framework for R&D tabled by Brazil and Kenya (IPW, Public Health, 28 January 2006), a resolution was adopted at the World Health Assembly in May 2006. The drafting group that came up with this resolution was chaired by Silberschmidt (IPW, Public Health, 27 May 2006).

Addor said that the IGWG brought along a lot of challenges, particularly with regard to avoiding a “good-against-bad” attitude in the field of IP and public health. In this respect the cross-departmental group is useful. “It builds trust between the different players in the Swiss administration and allows [us] to come up with coherent solution-oriented positions that go beyond the usual IP good or bad debate,” Addor said.

One example of the discussions of the Swiss group, which directly touches upon some of the issues dealt with in the IGWG, said Silberschmidt, is how to address the challenge of motivating basic researchers, whose work is usually driven by curiosity, to start adopting a needs-driven approach, as is called for in the resolution.

Addor said that Switzerland has also gone through all of the about 60 recommendations of the CIPIH report to identify what is already being done in the various areas. It has discussed all the areas of the report, which the officials noted was based on two years’ work, and it has been “praised to be a good report,” according to Silberschmidt.

The Swiss group has not formalised any consultation beyond itself, but since May there have been contacts with the industry and nongovernmental organisations on the CIPIH issue, Addor said.

Good Timing

Silberschmidt pointed out a number of reasons why the current time is good for the issues the Swiss working group (but also the IGWG) will be discussing, namely needs-driven research:

There is an independent CIPIH report available; Switzerland has ratified the WTO amendment allowing it to export medicines under compulsory licenses to countries without adequate production facilities, and the government is currently discussing revisions to its IP law, which will come into force in 2008; with the Gates Foundation and others donating a lot of money to address public health, it is a popular area at the moment. In addition, among the public there is an understanding much like the one that “one knows the renewable energy is the future” because of climate change, but it is just a matter of making the actual change.

He added that the resolution the Health Assembly passed in May had also made more and more people realise that the issue of public health does not belong in one forum alone.

Silberschmidt said that one would “not have imagined five years ago” that “everybody” would be in the same room discussing innovation and access to health, referring to the IGWG meeting. Addor said that the suspension in the WTO trade discussions since July had also given impetus to the IGWG process.

The WHO Group: Not One Solution

As for the outcome of the IGWG, Switzerland is looking for a “holistic, sustainable solution” that will work instead of it being just a “piece of paper.” They emphasised that Switzerland “wants to get results.”

Silberschmidt said he expects the IGWG to “fulfil its mandate,” which is “to draw up a global strategy and plan of action in order to provide a medium-term framework based on the recommendations of the commission,” according to the resolution.

During the week of the IGWG meeting, Silberschmidt said he was “rather pessimistic” about the outcome of the meeting but “rather optimistic” about the outcome of the process as a whole. “There is a lot at stake,” he said, referring to human lives, money and ideology.

Silberschmidt said he hoped both developed and developing countries would move “out of their boxes” in the discussions. He said the IGWG would provide a framework and then it was up to “all players to do the drawing.”

He also said, “There is not one solution,” referring to the IGWG and adding that for a similar intergovernmental working group on the WHO Framework Convention on Tobacco Control, most people knew “where to move.”

He said that while the tobacco convention is legally binding, this framework would be “soft law,” meaning that it will be morally binding for countries to adhere to it, but they do not have to ratify it. He said the United Nations Millennium Goals also are soft law.

Addor said that if parties could get out of a state of “positional sticking” and nobody listening to the others, it would be possible to come to a constructive debate in the IGWG, and maybe in 2010 one would look back to 2006 and think of how the parties had moved beyond the attitudes of patents being simply good or bad.

“All necessary ingredients are on the table. Now we have to translate the recommendations into action,” Addor said.

As to whether the Swiss “visiting” approach at the national level could help the IGWG process, Addor said that they had “not found the key,” but they had “found a process.” He said this is “not a best practice, just a good practice.” The overall reaction, Silberschmidt said, it that one “just does not get any result with fundamentalism.”

Switzerland and Developing Countries

Separately from the WHO working group, Switzerland was among the first countries to implement in its national law the changes made to the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights in December, 2005, making it possible for countries to export medicines produced under compulsory license to countries without adequate production facilities (IPW, Public Health, 6 December 2006).

Some developing countries have recently been sceptical of Switzerland’s motives and positions in IP and health issues, according to sources.

When asked about whether there are other areas in terms of IP where Switzerland is aiding developing countries, Addor said that this was not about Switzerland helping developing countries by giving them special rights in the IGWG talks (or in the field of IP in general), but it “actively listens to all countries, in particular developing countries.”

“But this requires that developing countries articulate their needs. Then the WHO, Switzerland and others can provide the technical assistance needed,” he said.

Currently, the Swiss State Secretariat for Economic Affairs is financing two projects, one on “Facilitating trade-related national policy coherence for a sustainable access to essential medicines,” carried out by the Geneva-based nongovernmental organisation, the International Centre for Trade and Sustainable Development, and another on “Determinants of Drug Prices in Developing Countries: How important are intellectual property rights?” carried out by the Development Centre of the OECD.

Tove Gerhardsen may be reached at tgerhardsen@ip-watch.ch.

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