TRIPs Amendment; China's Medicine For A New Pandemic?

It is good to be prepared for the worst. Zhu Zhe of the China Daily reports that last Sunday, during the 30th session of the National People's Congress (NPC) Standing Committee, China's legislature accepted an amendment to the World Trade Organization Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPs) to enhance access to medicines when dealing with public health emergencies, such as SARS and bird flu. Read Zhu Zhe's article here.

Xinhua wrote: "The Chinese government hopes that approving the bill will help China tackle public health emergencies like SARS and bird flu more effectively." Read the Xinhua article here. This legislation might help, but one could say that there is probably no alternative for transparency in case of pandemics or epidemics.

Agreement on the 'Implementation of paragraph 6 of the Doha Declaration on the TRIPS Agreement and public health of Decision of the General Council' was made August 2003, see here. This agreement was incorporated as an amendment to the WTO TRIPS Agreement on the eve the Hong Kong Ministerial Conference in December 2005, see here.

The amendment will be formally built into the TRIPS Agreement when two thirds of the WTO members have ratified it. The WTO said members have set themselves until Dec. 1, 2007 to do this. The waiver remains in force until then.

So how will TRIPs look like if the amendment is incorporated?

• "Five paragraphs come under Article 31 “bis” (i.e. an additional article after Article 31). The first allows pharmaceutical products made under compulsory licences to be exported to countries lacking production capacity.Other paragraphs deal with avoiding double remuneration to the patent-owner, regional trade agreements involving least-developed countries, “non-violation” and retaining all existing flexibilities under the TRIPS Agreement.


• A further seven paragraphs are in a new annex to the TRIPS Agreement. These set out terms for using the system, and cover such issues as definitions, notification, avoiding the pharmaceuticals being diverted to the wrong markets, developing regional systems to allow economies of scale, and annual reviews in the TRIPS Council.


• An “appendix” to the annex deals with assessing lack of manufacturing capability in the importing country. This was originally an annex to the 2003 decision.The new Article 31 “bis” and annex of the TRIPS Agreement are attached to a protocol of amendment. This in turn is attached to a General Council decision, which adopts the Protocol and opens it for members to accept it by 1 December 2007."

Source: WTO's article 'Members OK amendment to make health flexibility permanent' see here.