Pressures exerted on TRIPS flexibilities

When a country such as India implements one of the permitted flexibilities, the pharmaceuticals multinationals are quick to prosecute the state concerned, with the passive complicity of their governments (as in the case of Novartis for the cancer drug Glivec).

Lawsuit – 39 pharma companies versus South Africa

This denial of the right of economically weaker countries to fully exploit the flexibilities contained in the TRIPS Agreement reached its culmination in the late 1990s, during the lawsuit filed by 39 pharmaceuticals companies, including the Swiss companies Roche and Novartis – most of them with the backing of their respective governments – against South Africa for alleged violation of the TRIPS Agreement. The South-African state had, however, only used the flexibilities allowed for in the Agreement to manage an urgent public health issue – the HIV/AIDS pandemic. Following the international scandal triggered by this lawsuit, the issue of flexibilities was brought back to the negotiating table within the WTO, thereby paving the political path for the Doha Declaration.

Limited TRIPS exemption for LDCs

The difficulty experienced by the Least Developed Countries (LDCs) in obtaining a time-limited exemption (“waiver”) from the obligations of the TRIPS Agreement, although provided for in its Article 66.1 (renewable exemption without conditions), highlights that the richer countries put their own interests – and those of their multinationals – before the fundamental rights of the poorest countries on the planet. Alongside other NGOs, Public Eye appealed in 2013 and 2015 to the WTO and Switzerland with regard to this matter, resulting in an extension of the pharmaceutical patent exemption for LDCs until 2033.

Switzerland, the voice of the pharmaceutical industry

While compulsory licences represent an essential instrument for guaranteeing these patients access to patented medicines, it is still too seldom used. This remains a touchy subject at political level and the threats of commercial reprisals by countries where pharmaceutical companies are based often discourage low- and middle-income countries from resorting to these flexibilities, as was borne out by the prompt response from Switzerland to Thailand or Colombia when anti-cancer drugs from Roche and Novartis were involved.