WHO’s AFRAID OF INTELLECTUAL PROPERTY RIGHTS (IPRs)? Not the IPOPHL As It Seeks Non-Traditional Areas for Collaboration

Current BITS Concerns
Elpidio V. Peria
17 November 2012

The Intellectual Property Office of the Philippines (IPOPHL), an attached agency of the Department of Trade and Industry, organized this week from 13 to 14 November a seminar on intellectual property rights and international trade in collaboration with the Ministry of Foreign Affairs of Singapore, Temasek Foundation Centre for Trade and Negotiations, S. Rajaratnam School of International Studies of the Nanyang Technological University and the World Trade Organization.

As explained to me by its lead organizer, IPOPHL Deputy Director General (DDG) Andrew Michael Ong, this seminar was aimed at highlighting to key national agencies and stakeholders the importance of international trade issues, including intellectual property rights, especially on issues not usually associated with intellectual property rights – the non-traditional areas – like medicines, biodiversity, indigenous peoples and climate change. Attendees of the workshop were key national agencies from the Department of Agriculture, Department of Health, Bureau of Customs, etc., there was even a representative from the Professional Regulatory Commission, and beside me at one time, a law student, among others.

The seminar was important for those who are interested in getting an idea what the IPOPHL is up to dealing with these non-traditional areas for collaboration of their office:

1) IPRs and the Cheaper Medicines Law – as mentioned during an open forum on this topic by Bureau of Patents Director Epifanio Evasco, guidelines are already issued on the implementation of the provisions of the Cheaper Medicines Law on stopping the practice of “evergreening”, the much maligned practice by pharmaceutical companies of extending the life of existing patents on their drugs, through some loose criteria for patentability. They did not incorporate the changes in the Patentability Manual where the supposed changes are to be made, since, as they explained it, the changes in patentability criteria are limited, only applicable to pharmaceutical patents, and there is no need to change the entire Patentability Manual, for the purpose. The Manual is supposed to guide patent examiners of IPOPHL when reviewing pharmaceutical patent applications.

The Cheaper Medicines Law (or Republic Act 9502) incorporated noteworthy reforms in the matter of patents in medicine, among others, the use of compulsory licensing, the exercise by the State of its power to compel (thus compulsory) the patent holder to let third parties use its patents, for a set royalty rate; the enablement of those who wish to do parallel importation of imported drugs and medicines including non-profit sectors; the enablement of generic companies to use test data of established companies even if the patents of those companies are still existing (what the technical people call the “Bolar” provisions, based on US case law of which term is derived from the pharmaceutical company that started the case).

These changes are precedent-setting, the provisions on compulsory licensing are also being used right now by Malaysia, Indonesia and even Thailand to locally produce much-needed drugs to address the needs of their population. The law was passed in 2008 after a controversial session where a piece of paper coming from big pharma lawyers was intercepted as it was about to be passed on to a legislator; this law was even the subject of several Wikileaks entries where it was clear the US Embassy here in Manila exerted several “lobbying” efforts to legislators both in the House of Representatives and the Philippine Senate, indicating the intense interest of the US government on this issue. It’s good our legislators, particularly Sen. Mar Roxas and Congressman Junie Cua, stood their ground and went ahead with the law as we have now.

In spite of this law being in place for some four years now, it is actually under-utilized, as there appears to be no patient (like the very active HIV patients lobby in Thailand, for example) group in the Philippines interested in testing the provisions of the law. The Food and Drug Administration’s lawyer Emil Polig, has met recently with patient advocacy groups and he is hopeful these groups will avail of the benefits of the law. For the moment though, the attention of the FDA is focused on the apprehension of counterfeit drugs, which is prohibited under another special law.

2) T’boli Handicrafts Being Piloted as Geographic Indications – the IPOPHL cited as an example during the open forum on the topic IPRs and Biodiversity and Indigenous Peoples, their current attempt to pilot T’boli handicrafts from Lake Sebu in South Cotabato as an example of a collective mark, or a geographic indication, similar to efforts in other countries in coming up with a top export product associated with a geographic location, like Vietnam’s famous patis or soy sauce called Phu Quoc, coming from an island in the southern part of Vietnam, or France’s champagne or the Italian parmesan cheese or Parmigiano Reggiano.

There are other products being piloted as a geographic indication by the IPOPHL in collaboration with the well-known Department of Trade and Industry’s One-Town-One-Product (OTOP) , thus, the mango from Guimaras Island, the bangus or milkfish from Dagupan. Even Tanggol Kalikasan’s Ipat Luna, who was there as a presentor on food and agriculture and IPRs, suggested Taal Lake’s tawilis, though we were discussing how the population of the fish may cope if it becomes successful, it might lead to the extinction of the rare delicacy!

Amidst all this, the IPOPHL expressed its disappointment when in a similar workshop this year, in March 2012, with other cultural agencies, particularly the National Commission on Indigenous Peoples, and the National Commission for Culture and the Arts, and the National Museum, and participated in by a large number of indigenous peoples, it showed that the topmost concerns of the indigenous peoples attending that meeting mainly related to their ancestral domains. During the open forum, the IPOPHL was told they should not have been surprised at the result, as indeed, along the lines of my presentation, intellectual property rights (IPRs) are the farthest thing in the minds of indigenous peoples at the moment as they are preoccupied defending their ancestral domains from large scale mining, militarization, landgrabbing, and other perils. There can be entrepreneurial environmentalists, to use the term mentioned by Ipat Luna in her own presentation, who may avail of what I will call sui generis (unique, of its own kind) measures of protection using their customary laws and community protocols.

I even suggested, back in that March 2012 workshop, to the point of making the cultural agencies and IPOPHL uncomfortable, that perhaps they should first help the indigenous peoples in their struggles, and make a statement against these encroachments. That will be something, that will point to the importance of these biodiversity resources and traditional knowledge that are de-prioritized in favor of bigger paydays from large-scale mining, and the like. Their stoic response to this challenge would seem that they cannot really do anything against these immediate concerns of the indigenous peoples.

Amidst this effort at piloting the commercialization of some aspects of cultural heritage of indigenous peoples like this one currently on-going in Lake Sebu, there has to be broad-based consultation among the community concerned, that this is a clear decision that the T’boli community is making, aware of the opportunities and limitations of the geographic indications as an instrument and with the right procedures, including compliance with the community’s free and prior informed consent and the use of the community’s customary laws and practices.

3) IPRs and Climate Change – while Tony La Vina of the Ateneo School of Government gave some update on the technology transfer negotiations going on in the United Nations Framework Convention on Climate Change (UNFCCC), Jayashree Watal of the WTO explained why it is futile for developing countries to push for even a mention of IPRs in the negotiating text relating to transfer of technologies for climate change adaptation and mitigation. She said it has always been the instruction of US negotiators to swat away or keep out of the negotiating table any mention of the word IPRs, and even words with the same meaning aiming for the same import, putting some qualifications on how IPRs are dealt with in the climate change arena. She made some suggestions to developing country negotiators which she wrote up in a paper and that paper can be found in the WTO website. One further point she made was that Brazil’s Celso Amorim’s suggestion to use the same approach as TRIPS and Public Health to have a TRIPS and Climate Change declaration would be counter-productive, as it will not lead to the desired result, as the industries dealing with climate-related technologies are of a different nature and are working under different circumstances from that of the pharmaceutical companies.

Nationally, DDG Ong talked about the database that the country can use in identifying which technologies may be needed to address climate change mitigation and adaptation in the country, but it is important that they collaborate with the Climate Change Commission.

4) IPRs in Free Trade Agreements (FTA) – Ms. Woon Yin Liew spoke about how the free trade agreements entered into by Singapore benefited it economically, though she was candid enough to say there were costs into coming up to the level requirements of these FTAs, especially the US-Singapore FTA, which, from a seminar, indicated that even Singapore’s famous anti-chewing gum regulation was cut down to size, I forgot to ask how that regulation is now faring. When asked if the much-vaunted benefit of market access gained from entering into FTAs would outweigh the costs of taking on TRIPS-plus obligations in the area of IPRs, she said that it is up to each country to make its own cost-benefit analysis of the gains that it will get from entering into these FTAs. It goes without saying as implied from what she said, that, if the FTA is not beneficial to the country, from this cost-benefit exercise, then it should not enter into such FTA.

Ryan Evangelista of the Universal Access to Competitiveness and Trade (UACT), a think-tank of the Philippine Chamber for Commerce and Industry, suggested a “regulatory impact assessment” to check our readiness to take on obligations that will result in changing our relevant laws and regulations, but eventually said that these cost-benefit analyses efforts are just part of the exercise we need to undergo to achieve the goal of full trade liberalization.

During one of the exchanges, a question was raised to Jayashree Watal of WTO on whether the WTO has now actually “lost prestige” given that developed countries are pushing to have either the Anti-Counterfeiting Trade Agreement (ACTA) or the Trans Pacific Partnership Agreement, these are plurilateral (limited only to a small group of countries) agreements which calls for higher levels of protection and enforcement of IPRs; she said she wouldn’t comment on the observation on the loss of prestige of the WTO, but highlighted that developing countries would have a better chance of getting their interests protected in a multilateral setting, as has been the case in the history of the negotiations of the WTO.

From these updates, what is clear is that there needs to be a lot of engagement between the IPOPHL and the groups and stakeholders coming from these non-traditional areas of collaboration for IPR issues, to shape how the policies of the IPOPHL on these areas will come out, in a manner that is sensitive to the interests not only of the IPR holders (the Deputy Director General of World Intellectual Property Organization Yo Takagi admitted during the open forum that, while the trend worldwide in earnings from licenses and royalties from IPRs is increasing, this income mostly goes to developed countries who hold a disproportionate share, up to 90%, from a not-so-recent World Bank data, of these IPRs), but also the communities that stand to be affected by these IPRs. Perhaps also to enliven these seminars, IPOPHL can be better served by inviting the sectors involved, and consumers, or the general public, to make these seminars noisy, loud, but enriching and more susceptible to the generation of the ever-useful policy insights.

oOo

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