Substantial new barriers against generic drugs envisaged by the TPP will eliminate competition

The substantial new barriers against generic entry envisaged by the TPP will not only ensure longer monopoly pricing for pharmaceutical products but also render competition between brand and generic manufacturers unviable.

The text of the controversial Trans-Pacific Partnership treaty, involving the United States and 11 other countries – and 40% of the world’s GDP – was finally released in the public domain by prospective member parties earlier this month. Despite its breadth and the incorporation of significant new legal standards in international trade, the seven-year long negotiations leading up to the treaty were shrouded in secrecy with no details available to the public.

The Intellectual Property chapter, in particular, has been a cause for great concern, as leaked drafts of the text revealed substantial leaps in exclusion rights to rights-holders over and above the prevailing TRIPS standard. Consistent push-back from public health and open access advocates, internet freedoms activists, environmentalists, labour groups and even governments seems to have had only a marginal impact on the negotiations as the released text confirms this shift towards more restrictive standards. Most seriously, continual access to medicines faces a severe threat from the new barriers envisaged in the TPP text as pharmaceutical companies have been given not only stronger monopoly rights, but the opportunity to arm-twist national governments by invoking the private dispute resolution mechanism in the treaty.

Closed door negotiations

The fight for transparency in the TPP negotiations follows a history of intellectual property law making driven by corporate interests and characterised by knowledge asymmetries and coercive politics.

The very idea of linking intellectual property to international trade regulation via GATT – as opposed to the World Intellectual Property Organisation (WIPO) – was mooted and zealously advocated by a lobbying group of industry interests in the US that ingenuously transformed a buried provision against counterfeiting into a proposal for a full-fledged agreement covering all aspects of intellectual property. The developing world, particularly India, fought back against the imposition of mandatory minimum standards in IP, especially in the areas of pharmaceuticals and biotechnological products in agriculture. However, by linking WTO membership to the adoption of TRIPS, the developed world left other countries with no choice but to sign on.

At the same time, this resistance eventually translated into provisions that enabled modified rules in public interest, known as TRIPS flexibilities. These hard won flexibilities have enabled transition periods for developing countries and least developing countries (who just received a 17-year exemption for patents on pharmaceutical products), compulsory licenses and provisions against evergreening. Having failed at the global forum, the US and the EU have since attempted to counteract these flexibilities by introducing higher standards through regional free trade agreements. The TPP, in isolating the developing countries in that region and conducting negotiations on the basis of ‘advice’ from industry groups and away from civil society scrutiny, prevented the mobilisation of public opinion that successfully pushed back against such private interest-driven policymaking at the time of the TRIPS Agreement. It is no surprise then that the TPP envisages huge gains for corporations to the detriment of public interest.

The rest of this excellent article is at:

http://thewire.in/2015/11/16/drawn-up-in-secret-the-tpps-text-helps-big-pharma-put-patents-over-patients-15571/