[ncdnhc-discuss] FTAA and ICANN UDRP [Fwd: [Ip-health] FTAA Comments from EssentialAction]

[Nilda Vany Martinez Grajales]

Manon:

I have informed that the ccTLD of Chile has sent their comments to the
negociator commitee of the FTAA regarding this subject.
The only link I have for this comments is in Spanish.  But I suppouse that
somewhere int he FTAA website this are translated into English

http://www.nic.cl/Board/2001-2/alca.html

Best Regards
Vany
:-)

P.S.  FTAA = ALcA in Spanish.


Manon Ress wrote:

> Comments in response to a request from the Office of the U.S. Trade
> Representative for public comment on negotiating objectives for the
> proposed Free Trade Area of the Americas (FTAA)
> (Federal Register, July 12, 2001).
>
> The comments focus on IP and access to drugs but mention that the FTAA
> contains harmful TRIPS-plus provisions which should not be adopted.  For
> example:  A mandate that FTAA countries rely on the private,
> unaccountable ICANN to resolve disputes over domain names, including
> disputes with significant free speech implications (page 8.14).
>
> Do you know if anyone from the NCC or ccTLD has sent comments?
>
> --
> Manon Anne Ress
> mress at essential.org, voice: 1.202.387.8030
>
>   ------------------------------------------------------------------------
>
> Subject: [Ip-health] FTAA Comments from Essential Action
> Date: Tue, 28 Aug 2001 12:55:26 -0400 (EDT)
> From: Robert Weissman <rob at essential.org>
> To: <ip-health at lists.essential.org>
>
> Robert Weissman
> Co-Director
> Essential Action
> P.O. Box 19405
> Washington, D.C. 20036
>
> August 22, 2001
>
> Gloria Blue
> Executive Secretary
> TPSC
> Office of the USTR
> 600 17th Street, NW
> Washington, DC 20508
> Attention: Free Trade Area of the Americas Draft Text Release
>
> Dear Ms. Blue:
>
> Essential Action submits these comments in response to a request from the
> Office of the U.S. Trade Representative for public comment on negotiating
> objectives for the proposed Free Trade Area of the Americas (FTAA)
> (Federal Register, July 12, 2001).
>
> Essential Action is a corporate accountability group that focuses
> especially on international issues. We have been involved in trade and
> intellectual property policy debates for more than a decade.
>
> We preface our comments by noting that we are opposed altogether to
> negotiation of an FTAA on the North American Free Trade Agreement (NAFTA)
> model. Our view is that measured by any of numerous people-centered
> indicators (as opposed to corporate-oriented standards), NAFTA has been a
> complete failure, and highly detrimental to people and the environment in
> all three member countries. It is an agreement that should be reversed,
> not expanded.
>
> These comments, however, focus on the potential intellectual property and
> investment provisions of an FTAA as they relate to issues regarding access
> to medicines and compulsory licensing. We hope in the near future to
> provide separate comments on the FTAA with regard to another pressing
> public health issue, tobacco control.
>
> These comments are based on the official draft of the FTAA made public in
> early July 2001, and published on the FTAA website at
> <http://www.ftaa-alca.org/alca_e.asp>. That text is highly inadequate for
> purposes of public policy analysis. It suffers from serious citation
> shortcomings, a problem we seek to overcome as best we can in these
> comments. A more serious problem is that the draft text fails to identify
> which countries have introduced or support which provisions, making it
> difficult to assess which of multiple contradictory bracketed provisions
> are most likely to likely to enter a final agreement, and which are the
> most likely operative negotiating provisions.
>
> Given these limitations, what can be said is this: There are numerous
> proposed provisions in the FTAA that would go far beyond WTO rules and
> that would dramatically limit countries' ability to promote access to
> medicines. Lives are at stake in the negotiations that determine whether
> these provisions are incorporated into the final agreement, and in the
> national deliberations over whether a final agreement is adopted. To take
> one example, under these harmful provisions, Brazil, which runs what may
> be the developing world's most effective HIV/AIDS treatment program, may
> find itself facing difficulties in making new drugs available.
>
> We conclude that, should there be an FTAA, intellectual property and
> investments should be excluded from the agreement. If these chapters are
> included, a variety of the U.S.-backed proposals on intellectual property
> should be abandoned, and intellectual property should be excluded from the
> investment chapter.
>
> I. THE INTELLECTUAL PROPERTY CHAPTER
>
> THE CASE FOR EXCLUDING INTELLECTUAL PROPERTY
> FROM THE FTAA
>
> There is no reason for inclusion of intellectual property provisions in
> the FTAA. All FTAA negotiating countries are members of the World Trade
> Organization and have committed themselves to the Agreement on
> Trade-Related Aspects of Intellectual Property Rights (TRIPS). TRIPS
> establishes a comprehensive international standard for intellectual
> property protection, with a heavy tilt towards the interests of
> intellectual property (IP) holders.
>
> The TRIPS rules constitute a floor of IP protection. With TRIPS already
> establishing a high level of IP protection in every Member country, there
> is no reason to include IP rules in regional agreements among TRIPS
> Members.
>
> Because WTO TRIPS establishes a floor for all FTAA negotiating countries,
> including IP in the FTAA will almost certainly serve only one of two
> harmful purposes.
>
> First, the FTAA may incorporate enhanced IP protection ("TRIPS-plus"
> provisions). Such provisions are not only unnecessary, but, as discussed
> below, dangerous and injurious to public health.
>
> Second, many of the FTAA provisions are likely to mirror those already in
> TRIPS. This will impose no new obligations on FTAA members, but it will
> work to further lock in place TRIPS provisions that diminish the public
> domain, and to enhance the power of intellectual property holders. Under
> this scenario, if reforms ever occurred in the TRIPS that expanded the
> public domain, the FTAA members would still be required to maintain the
> pre-reformed policies that favor intellectual property holders. This is
> not a two-way street, however; changes in the TRIPS that work to expand
> the exclusionary and monopolistic rights of intellectual property holders
> would be binding on the FTAA member countries.
>
> The duplicative obligations under TRIPS and the FTAA would benefit IP
> holders even in the absence of any changes in TRIPS. That is because the
> overlapping jurisdiction of the WTO and the FTAA on these issues would
> enable plaintiff countries in IP cases to forum shop, seeking to bring
> cases wherever they believe adjudicators to be most friendly.
>
> There is a third possible effect of inclusion of some IP provisions in the
> FTAA. Where there is uncertainty in the margins of TRIPS, inclusion of
> provisions in the FTAA that expand the public domain could be operative.
> This might relate to such issues as the right to export under a compulsory
> license, whether under Articles 6, 30 or 31(f) of the TRIPS. Other
> limitations on intellectual property may have no binding effect, given the
> TRIPS floor, but would at least establish a positive example. There are
> some such proposals in the current FTAA text, including exclusions on the
> patentability of lifeforms, business methods and computer programs (pages
> 8.47, 8.49). We would support such pro-public domain provisions -- they
> are the only IP provisions we would support in an FTAA -- though we are
> skeptical of the likelihood of their inclusion given the U.S. role in the
> negotiations, and we note the possibility of working out such TRIPS
> ambiguities in the TRIPS Council, if the United States operates there with
> some respect for the public interest and public health, instead of
> maintaining a single-minded focus on defending the interests of
> intellectual property holders.
>
> COMPULSORY LICENSING AND THE PUBLIC/PRIVATE SECTOR DIVIDE
>
> Perhaps the most troublesome provision of the FTAA IP chapter is a
> proposed limitation on compulsory licensing to the public sector only
> (page 8.64 (6)). This provision would limit the grounds for compulsory
> licensing for non-public use far more than does the TRIPS agreement.
> Compulsory licensing, a critical policy tool to prevent price-gouging and
> promote competition, enables a government to instruct a patent holder to
> license the right to use its patent to a company, government agency, or
> other party. Compulsory licensing lowers prices to consumers by creating
> competition in the market for the patented good. Its impact is similar to
> the introduction of generic competition at the end of a drug's patent term
> -- prices come tumbling down.
>
> Under the public sector-only provision of the FTAA, compulsory licensing
> to achieve the public health aim of making medicines more accessible would
> only be permissible if the licenses were granted to the "Government of the
> Party or by a private entity acting on behalf of the Government of the
> Party" (page 8.64 (6)). Under the more permissive TRIPS arrangement, by
> contrast, compulsory licenses could as a matter of course be granted to
> private parties for commercial, non-public use,  so long as TRIPS
> procedures and rules, including payment of reasonable compensation to the
> patent holder, were complied with.
>
> The public sector-only provision of the FTAA would permit compulsory
> licensing only for "the making, using or importing of the patented
> invention solely to satisfy the requirements of the Government use, and
> shall not entitle a private party acting on behalf of the Government to
> sell products produced pursuant to such authorization to a party other
> than the Government." The public sector-only provision would prevent, for
> example, Peru from issuing a compulsory license on HIV/AIDS drugs to an
> Indian generic manufacturer, for sale in the private sector. There is no
> conceivable public policy rationale for such an outcome.
>
> The provision does include a national emergency exception, but there is no
> reason for private sector compulsory licensing to be limited to these
> circumstances. Certainly, there are many instances, especially in
> developing countries, where access to medicines is a pressing issue but
> where national emergency conditions do not exist. And, for better or
> worse, it is the case that access to pharmaceuticals and medical treatment
> throughout the Americas is often obtained through the private sector. Why
> should price gouging be permitted in these instances? Why should people be
> denied access to treatments in these circumstances?
>
> By contrast, TRIPS Article 31 contemplates a much more rational position,
> in which compulsory licensing is part of the basic schema of the
> intellectual property system, not a limited set of exceptions. Article
> 31(b) permits compulsory licensing generally, so long as certain
> procedural conditions are met. (1)
> Significantly, the FTAA provisions would impact on compulsory licenses
> outside of the pharmaceuticals sector, and on the United States, not just
> on our trading partners. Some of the IP provisions of the FTAA appear to
> conflict with existing U.S. law, and with various legislative proposals
> recently introduced in Congress. For example, 42 USC Sec 2183 permits
> compulsory licensing of atomic energy inventions. In the 107th Congress,
> Representative Sherrod Brown introduced HR 1708, which would permit
> compulsory licensing of pharmaceuticals and patented medical
> inventions.(2)  In the 106th Congress, Representative Dennis Kucinich
> introduced HR 4739, which would permit compulsory licensing of patents on
> reformulated gasoline.(3) Compulsory licensing is likely to become
> increasingly important in the United States in the field of biotechnology,
> where patents on foundational inventions and multiple overlapping patents
> on single consumer products have the potential to seriously impede medical
> progress.
>
> COMPULSORY LICENSING AND THE EXPORT ISSUE
>
> One of the most serious TRIPS impediments to effective compulsory
> licensing involves limitations on exports. The FTAA appears poised to
> worsen this problem dramatically.
>
> TRIPS Article 31(f) poses significant difficulties in making compulsory
> licensing operational. It specifies that compulsory licenses must be
> "authorized predominantly for the supply of the domestic market" of the
> country issuing the license.
>
> This poses serious potential difficulties for small countries. These
> countries may wish to issue compulsory licenses to foreign producers, on
> the grounds that it would be inefficient or impossible to source from a
> domestic supplier that would have a license only to sell in a limited size
> market. Under TRIPS and the FTAA, this right to import is unimpeded. But
> there is the matter as well of whether a manufacturer would be able to
> obtain a license to export. The prospect of obtaining such a license under
> TRIPS is complicated by Article 31(f)Õs predominantly for this supply of
> the local market requirement. However, a compulsory license proposal in
> the FTAA would raise the bar much higher, prohibited compulsory licensees
> from exporting altogether (page 8.64 (6)(b)).
>
> In the context of TRIPS, countries and advocates have proposed a variety
> of means of dealing with the compulsory license for export problem. One of
> those proposals, involving a flexible interpretation of 31(f) itself,
> would be impossible for the Americas under the FTAA proposal. The other
> such proposals may also be undermined, since the firm language of page
> 8.64 (6)(b)) banning compulsory licenses for exports would make it much
> more difficult to interpret an FTAA provision that paralleled TRIPS
> Article 30, or an FTAA provision related to exhaustion of rights, in such
> a way as to permit compulsory licenses for export.
>
> The impact of this provision would fall heaviest on people, especially
> poor people, in small population countries. There is simply no defensible
> rational for a policy that requires people in Central America or the
> Caribbean to pay more for medicines than people in Brazil, Mexico or
> Argentina, with  people living in small countries denied the price
> reductions and greater accessability to medicines following from
> compulsory licensing, just because they live in smaller countries. This
> economically inefficient and illogical provision, which would exacerbate
> the most serious TRIPS impediment to compulsory licensing, must be
> abandoned.
>
> LINKING MARKETING APPROVAL TO PATENT STATUS
>
> A proposed provision of the FTAA would link marketing approval for a drug
> -- based on a finding of safety and efficacy, or bioequivalence to a safe
> and efficacious product, granted by FDA-equivalent agencies -- to patent
> expiration (page 8.65 (3)).
>
> This arrangement establishes drug safety agencies as de facto IP
> enforcement agencies. In practice, this kind of arrangement is likely to
> yield unjustified patent extensions, as drug safety agencies, operating
> outside of their field of competence, improperly deny marketing approval
> to generic competitors.
>
> In the United States, where marketing approval is linked to patent
> expiration, the FDA almost automatically grants 30-month monopoly
> protection to patent holders who claim a new patent on claims related to
> dosage levels or similar grounds of renewed patents for drugs nearing the
> end of patent protection. In deference to these patent claims, the FDA
> denies marketing approval to generic companies -- even though many are
> subsequently found illegitimate. The result is that consumers are denied
> the benefits of competition, and lowered prices, for two-and-a-half years.
>
> There should be no linkage between marketing approval and patent term. If
> a generic company markets an on-patent drug without license, under TRIPS
> the patent holder has adequate remedy at law. Stated differently, linkage
> can only serve to protect invalid IP claims -- valid claims receive
> protection through normal judicial means.
>
> Again, it bears emphasizing that the artificial inflation of the price of
> medicines that stems from such misuses of the IP system is often a
> life-and-death matter. Seemingly obscure IP provisions will have enormous
> consequences for how much preventable suffering is averted or endured by
> the poor.
>
> IMPROPER GRANTS OF DATA EXCLUSIVITY
>
> Article 39.3 of the TRIPS agreement requires members to grant "reasonable"
> protection to "undisclosed" pharmaceutical test data, the study data
> showing safety and efficacy. To gain marketing approval, generic companies
> typically show their product is bioequivalent to a patented product, and
> then rely on the patented product's safety data to earn approval.
>
> In many instances, if a generic company cannot use the already-generated
> registration data, it will not introduce a generic version of the patented
> product; the price of generating the data may be too high, or, just as
> important, take several years to replicate. If the company does choose to
> re-generate the data, consumers suffer from the delay in the introduction
> of the generic product that occurs while the generic firm re-conducts the
> relevant tests. Moreover, from a social point of view, retracing old tests
> to reach an already-known result is a tremendous waste of resources.
>
> In those countries that establish set terms for registration data
> exclusivity (5 years in the United States, 10 years in the European
> Union), the period of exclusivity typically runs shorter than the patent
> term. Thus, registration data protections are not normally an impediment
> to the introduction of generics.
>
> They are an issue, however, for new drugs that are not patent-protected or
> in cases of compulsory licensing. Where a compulsory licensing is granted
> for a drug for which registration data exclusivities remain in force, the
> data exclusivity can block the generic from gaining market approval.
>
> An effective system of compulsory licensing must therefore permit
> compulsory licensing of registration data.
>
> The FTAA includes TRIPS-plus proposals on registration data that would
> mandate five years protection for the data submitted to show drugs are
> safe and efficacious (page 8.65 (1)).
>
> TRIPS language itself is quite vague on registration data.(4) It only
> covers "undisclosed" data, stipulates protection from "unfair" commercial
> use, does not address the issue of reliance upon published studies or
> foreign government drug approvals, and sets out no standards for how
> governments should protect against unfair commercial use.
>
> It is unacceptable for trade agreements to contain language that increases
> monopolistic protection for registration data beyond that contained in
> TRIPS. Such measures may significantly impede efforts at compulsory
> licensing of pharmaceuticals and rapid introduction of generic
> competition.
>
> EXTENSION OF THE PATENT TERM
>
> The FTAA contains a proposal for patent extensions to offset delays in
> marketing approval for pharmaceuticals (page 8.65(8)). Like the harmful
> provisions on improper grants of data exclusivity and linking marketing
> approval to patent status, USTR has listed this provision as among the
> U.S. negotiating objectives for the FTAA.(5) The result of the patent
> extension provision would again be extended monopoly protection for drug
> manufacturers and gouging of consumers.
>
> TRIPS obligates member countries to grant 20-year patents. Those patents
> provide a two decade monopoly on inventions. Patent terms seek to create a
> balance between providing incentives for inventors and the public interest
> in maintaining and promoting competition. The 20-year term manifested such
> a balance -- albeit one tilted in favor of the corporate patenting sector
> -- taking into account the known delays sometimes associated with
> marketing approval. Adding additional time to the patent term after a
> balance has been struck improperly tips the IP scheme too significantly
> for patent holders.
>
> OTHER INTELLECTUAL PROPERTY CONCERNS
>
> The FTAA contains other harmful TRIPS-plus provisions which should not be
> adopted.
>
> These provisions include:
>
> * A proposal to deepen dramatically the monopoly power of the holders of
> gene patents.(6)
>
> * A mandate that FTAA countries rely on the private, unaccountable ICANN
> to resolve disputes over domain names, including disputes with significant
> free speech implications (page 8.14).
>
> II. THE INVESTMENT CHAPTER
>
> In addition to the intellectual property chapter, the investment chapter
> of the draft FTAA would provide an additional set of protections to
> intellectual property holders.
>
> Essential Action is strongly opposed to the inclusion of an investment
> chapter in the FTAA. The NAFTA experience with an investment chapter shows
> how far-reaching and pernicious can be the effects of an investment
> agreement on a wide range of public interest considerations.(7)
>
> But the implications are especially dire for intellectual property. To
> whatever extent there is a logic to investment agreements, it does not
> apply to intellectual property. Especially since intellectual property is
> a form of investment that is already protected under existing
> international trade agreements (and likely to be contained again in the
> FTAA), intellectual property should be excluded from any investment
> provisions contained in the FTAA.(8)
>
> PERFORMANCE REQUIREMENTS
>
> The FTAA investment proposal prohibits "performance requirements" imposed
> on investors (Article 7, page 3.5). Compulsory licensing would be such a
> performance requirement, as listed in Article 7.1(f) (page 3.6): "No Party
> may impose or enforce any of the following requirements ... : to transfer
> a particular technology, production process or other proprietary knowledge
> to a person in its territory" [brackets excluded].
>
> There are two important proposed exceptions to this provision. In Articles
> 7.1(f) and 7.4.2(b) is a proposed exception for such requirements
> resulting from an antitrust enforcement action. In Article 7.4.2(a) is a
> proposed exception for "measures relating to the transfer of intellectual
> property rights as set forth in and that are consistent with the
> provisions of Articles XXX (CITE TO SPECIFIC ARTICLES) of Chapter XX
> (Intellectual Property Rights)" [IN ORIGINAL].
>
> Article 7.4.2(a) may well provide protection for compulsory licensing,
> though it is impossible to know this at this point, since the proposal is
> in brackets (as is the entire text) and the referenced articles in the IP
> chapter are unspecified.
>
> But even if Article 7.4.2(a) does provide protection for compulsory
> licensing, the coverage of all performance requirements not compatible
> with the as yet unspecified provisions of the FTAA IP chapter will
> dramatically chill countriesÕ willingness to undertake compulsory
> licensing, as explained below.
>
> The Article 7.1(f) provision raises a separate and distinct problem with
> regard to registration marketing approval data protection. Even if the
> United States does not succeed in winning inclusion of its proposal for
> five years data protection in the FTAA IP chapter, Article 7.1(f) would
> appear to provide independent protection of the registration data, with no
> clear endpoint, perhaps not even the five-year period sought by the United
> States. At what point could a country impose the "performance requirement"
> of enabling a generic competitor to rely on the registration data? No time
> limit appears contemplated in Article 7.1(f). Would reference to an IP
> provision on registration data exclusivity matter in this instance, given
> the nature of the IP language and the special nature of the registration
> data "investment?" These are pressing questions to which we do not see
> obvious and satisfactory answers.
>
> EXPROPRIATION
>
> Following the NAFTA model, Article 10 of the FTAA investment chapter
> includes a prohibition on expropriation absent payment of market value
> compensation. Article 10.9 would exclude compulsory licensing and
> intellectual property limitations from coverage under the expropriation
> provision, so long as these provisions are TRIPS-compliant, though again
> these exclusions, like the rest of the draft agreement, are in brackets.
>
> It is absolutely vital that compulsory licensing and intellectual property
> be excluded from expropriation provisions. Failure to do so would make
> doing compulsory licensing extremely difficult and maybe impossible.
>
> The expropriations/compensation language in the FTAA would likely mean
> that a government issuing a compulsory license would owe massive
> compensation to the patent holder. Under TRIPS Article 31 compulsory
> licensing, the licensee owes a reasonable royalty to the patent holder. By
> contrast, under the FTAA expropriation language, the patent holder would
> be entitled to compensation for an "expropriation" and for the fair market
> value of the "taken" property. This might well be the value of the lost
> sale (at the patent holder's price) minus the paid royalty. The patent
> holder might quite likely seek more: the patent holder could also argue
> for lost profits on sales of the patented good, if the patent holder is
> forced to lower prices in the face of competition.
>
> In such a scenario, no government would issue a compulsory license. Even
> the possibility of such a scenario, given the fact that liability would
> rest with the government, would be enough to chill any issuance of a
> compulsory license.
>
> There must therefore be a crystal clear exclusion of intellectual property
> from the expropriations provision -- not just TRIPS-compliant measures
> related to intellectual property. Absent such an exclusion, the chill from
> this provision may freeze out compulsory licenses altogether, as detailed
> below.
>
> INVESTOR STANDING TO SUE
>
> Following on the NAFTA model, the FTAA would give standing to investors to
> sue governments for violations of the investment chapter (Article 14).
>
> Such standing would have devastating consequences for protection of the
> public domain and improving access to essential medicines.
>
> With patent holders given rights to sue governments directly over
> intellectual property disputes, the "flexibility" that the United States
> says characterizes its present approach to intellectual property and
> public health matters would be largely meaningless. Even where the U.S.
> government chose to exercise its discretion not to challenge another
> country's law, regulation or rule, a patent holder could proceed to do so.
> Under some of the proposed provisions of the FTAA, it appears even those
> contemplating making an investment could bring such a challenge and seek
> compensation for lost future profits (see for example, page 3.36 (3)).
>
> The prospect of private actors bringing such suits would have a deep
> chilling effect on national governments. They would have to operate
> against the backdrop of private patent holders bringing investment chapter
> lawsuits against them regarding controversial provisions in the IP
> chapter. Given the potential severe compensation requirements under the IP
> chapter, and the pro-investor record established under NAFTA investment
> tribunals, governments would be strongly deterred from taking measures
> which might even conceivably contravene the investment provisions.
>
> That is why the intellectual property exclusions in the investment
> chapter, if there is to be an investment chapter, must be broad, and not
> limited to TRIPS-compliant or FTAA IP chapter-compliant measures.
> Intellectual property holders must not have standing to sue under the
> investment chapter.
>
> It is also worth noting that TRIPS already requires countries to maintain
> adjudicative remedies for alleged infringements on intellectual property
> rights, meaning intellectual property holders already have a direct remedy
> at law. But in these instances, at least, intellectual property right
> holders' ability to sue and prospects for compensation are bounded by the
> TRIPS and IP chapter of the FTAA, and the adjudicative context is not the
> biased arbitration panels used by NAFTA and proposed in the FTAA.
>
> CONCLUSION
>
> It is unconscionable and unacceptable to negotiate provisions relating to
> access to medicines without first running them through a public health
> screen. If those provisions will harm public health, and meaningfully and
> unreasonably impede people's access to medicines and medical treatment,
> then they must not be adopted. The intellectual property and investment
> provisions of the draft FTAA do not pass this test.
>
> If there is to be an FTAA, there should be no intellectual property
> chapter included. If it is included, it must be stripped of all TRIPS-plus
> measures, though even replicating the TRIPS agreement in the FTAA will
> have harmful consequences for public health. And if there is an FTAA,
> there should be no investment chapter. If there is an investment chapter,
> then intellectual property must be excluded completely. Failing to do so
> will contravene and make irrelevant the "flexible" policy regarding public
> health that the USTR claims it applies to disputes regarding access to
> medicines.
>
> More to the point, failing to take these steps will tend to make it more
> difficult for people to gain access to essential and lifesaving medicines,
> will deepen the monopolistic power of intellectual property holders and
> will facilitate price gouging of consumers throughout the Americas,
> including in the United States. No U.S. government agency should be
> pursuing such an agenda.
>
> Sincerely,
>
> Robert Weissman
>
> FOOTNOTES
>
> 1. These conditions include: a prior effort by the proposed user to obtain
> authorization from the right holder on reasonable commercial terms (TRIPS
> Article 31(b)), that the compulsory license be granted for a specific
> purpose only (TRIPS Article 31(c)); that the license be non-exclusive,
> non-assignable and predominantly for use in the domestic market (TRIPS
> Article 31 (d), TRIPS Article 31 (e), TRIPS Article 31 (f)), that the
> license be terminated if the conditions giving rise to it cease (TRIPS
> Article 31 (g)), that the legal validity of the license and the terms of
> remuneration be subject to appeal to a judicial or administrative
> authority (TRIPS Article 31 (i), TRIPS Article 31 (j)).
>
> 2. The bill was co-sponsored by Representatives Marion Berry, Fortney Pete
> Stark, Thomas Allen, Bernie Sanders, David Bonior, Barbara  Lee, Steven
> LaTourette, Albert Wynn, James Langevin, Danny Davis, Thomas Barrett, John
> Baldacci, Janice Schakowsky, Gene Green, Stephanie Tubbs Jones, Jerrold
> Nadler, John Lewis, George Miller of California and Peter DeFazio.
>
> 3. The bill was co-sponsored by Representatives John Elias Baldacci,
> Thomas M. Barrett, William Lipinski, Cynthia McKinney, Eleanor Holmes
> Norton and Frank Pallone, Jr.
>
> 4. "Members, when requiring, as a condition of approving the marketing of
> pharmaceutical or of agricultural chemical products which utilize new
> chemical entities, the submission of undisclosed test or other data, the
> origination of which involves a considerable effort, shall protect such
> data against unfair commercial use. In addition, Members shall protect
> such data against disclosure, except where necessary to protect the
> public, or unless steps are taken to ensure that data are protected
> against unfair commercial use." TRIPS, Article 39.3.
>
> 5. USTR, "FTAA Negotiating Group on Intellectual Property, Public summary
> of U.S. Position," http://www.ustr.gov/regions/whemisphere/intel.htm (No
> date, but released January 17, 2001).
>
> 6. On page 8.51 are provisions to: "É 2. When the patent protects a
> biological product that claims to have specific characteristics, the
> protection shall also cover any biological material derived through
> multiplication or propagation of the patented product and having the same
> characteristics. 3. When the patent protects a biological product
> procedure that claims to have specific characteristics, the protection
> shall also cover all biological material derived through multiplication or
> propagation of the material directly obtained from the procedure and
> having the same characteristics. 4. When the patent protects a specific
> genetic sequence or biological material containing that sequence, the
> protection shall also cover any product that includes that sequence or
> material expressing that genetic information."
>
> 7. See, for example, Mary Bottari, "NAFTA's Investor "Rights" A Corporate
> Dream, A Citizen Nightmare," Multinational Monitor, April 2001.
>
> 8. Intellectual property is defined as a form of investment covered by the
> FTAA in several proposed provisions (pages 3.33, 3.34).
>
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> Ip-health mailing list
> Ip-health at lists.essential.org
> http://lists.essential.org/mailman/listinfo/ip-health

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Nilda Vany Martinez Grajales
Information Technology Specialist
Sustainable Development Networking Programme/Panama
e-mail: vany at sdnp.org.pa
http://www.sdnp.org.pa