WORLD TRADE
ORGANIZATIONIP/C/W/354
24 June 2002
(02-3474)
Council for Trade-Related Aspects
of Intellectual Property RightsOriginal:  English
PARAGRAPH 6 OF THE DOHA DECLARATION OF THE TRIPS AGREEMENT
AND PUBLIC HEALTH
Communication from the United Arab Emirates
By means of a communication dated 21 June 2002, the following text, which is the UAE
understanding of the Doha Declaration on the TRIPS Agreement and Public Health, has been received
from the Permanent Mission of the United Arab Emirat es with the request that it be circulated to the
TRIPS Council.
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1. The Doha Declaration on the TRIPS Agreement and Public Health states that the WTO
Agreement on Trade-Related Aspects of Intellectual Property Rights does not and should not preventMembers from taking measures to protect public health.  The Declaration states in addition that the
TRIPS Agreement should be interpreted and implemented in a manner supportive of WTO Members'
right to protect public health and, in particular, to promote access to medicines for all.
2. The United Arab Emirates attaches a high importance to the issue of balancing the rights and
obligations arising from the TRIPS Agreement.  It attaches a high importance to both intellectual
property rights protection to encourage invention and technology development, and the right of
Members to design and implement public health policy.
3. The preamble of the TRIPS Agreement, as well as Article 7, make it clear that one of the
objectives of the Agreement is to promote technology transfer and dissemination, which may be
ensured, in some circumstances, by means of compulsory licences.  Article 8 stresses Members' rightto adopt measures necessary to protect public health and nutrition, and to promote the public interest
in sectors of vital importance.
4. In our opinion Articles 7 and 8 constitute, thus, the cornerstone of the intellectual property
legal system in the WTO.  Therefore, they provide the context for the interpretation of other
provisions in the TRIPS Agreement.  The way in which they define the object and purpose of the
Agreement should guide us in searching for solutions to problems.
5. Paragraph 6 of the Doha Declaration on the TRIPS Agreement and Public Health recognizes
that WTO Members with insufficient or no manufacturing capacities in the pharmaceutical sector
could face difficulties in making effective use of compulsory licensing under the TRIPS Agreement.
The Declaration instructs the TRIPS Council to explore an expeditious solution to this problem and to
report to the General Council before the end of 2002.
6. Paragraph 6 should be read in the light of the overall picture designed by the Ministers in the
Doha Declaration aimed at supporting Members in taking measures to protect public health andIP/C/W/354
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facilitating access to medicines for all.  It should be understood in the light of the spirit of the Doha
Declaration and the objectives set therein.
7. It was expected that the Doha Declaration would add good value to the required balance
between Members' rights and obligations in the TRIPS Agreement.  The Doha Declaration was not
expected, through a narrow approach in its interpretation, to restrict the use of the means and toolsavailable to WTO Members to pursue their public health policies.  It has been designed, on the
contrary, to clarify and enhance the possibilities available to WTO Members.
8. Thus, effective use of compulsory licensing should be understood to search for a solution that
facilitate policies to supply the pharmaceutical needs of Members with insufficient or no
manufacturing capacities in the pharmaceutical sector.  At the same time it should be used to ensure
the development of domestic capacities in the mentioned sector in the long term.
9. The Doha Declaration does not refer just to situations that relate to serious health problems
like malaria, HIV/AIDS, tuberculosis, which are certainly very serious problems, but it relates also to
all other public health policy problems.  Paragraphs 4 and 5 recognize the need for flexibility for this
purpose, including the right to grant compulsory licences and the freedom to determine the grounds
upon which such licences are granted.
10. A better understanding of Paragraph 6 of the Doha Declaration, read in the light of the overall
paragraphs, would help to reach a solution that Members could come up with to take care of serious
health problems arising in poor and small countries.   But it would help also to take care of all
developing countries with insufficient capacities to make effective use of compulsory licences.  Those
countries which are not necessarily poor in terms of revenue but which are in the biggest need to
develop their domestic capacities as well as to be able to ensure full access to medicines for all.
11. Any solution under the Doha Declaration should be made available to all Members without
further distinction or categorization of developing countries.  They are all facing public health
problems and expect to design and implement an effective public health policy without impediment
that could arise from an inadequate interpretation of the TRIPS provisions and the Doha Declaration.
12. Article 31 of the TRIPS Agreement provides WTO Members with different forms of
compulsory licences in respect of patents.  Th e TRIPS Agreement specifically refers to various
grounds for the granting of compulsory licences in that field:  emergency and extreme urgency; anti-
competitive practices; public non-commercial use; dependent patents. It does not limit the Members'
right, however, to establish compulsory licence s on grounds other than those explicitly mentioned
therein, for instance for reasons of public health and public interest.  In countries with limited
industrial development, public interest is deemed to include the opportunity to develop national
industry.
13. Compulsory licences for medicines particularly have proven, in many developed countries, to
be an important tool to promote competition and to lower prices of protected products and
furthermore to increase the willingness of patent owner to grant a voluntary licence.  This and others
will certainly help to ensure access to medicines for all.
14. The UAE has taken note with high interest of the European Communities paper contained in
the document I/PC/W/339 that has been submitted on 4 March 2002 during the last session of the
Council for TRIPS.  It tackles the issue in a posi tive and cohesive manner, which could help finding
balanced and sustainable solutions.  It presents also possible options to reach solutions to the problem.
The approach aiming at amending Article 31 of the TRIPS Agreement or interpreting of Article 30
could form the basis of an eventual solution.IP/C/W/354
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15. Certainly Article 31 does not restrict the grounds for granting compulsory licences, but it
contains a detailed set of conditions which limit the use of such licences.  It is clear that for the
Members with insufficient or no manufacturing capacities in the pharmaceutical sector, which are
mostly developing country Members, the right granted by Article 31 of the TRIPS Agreement is of no
practical use.  They have, in fact, no domestic manufacturer to which compulsory licences can begranted.  Even those countries with insufficient manufacturing capacities could not enjoy fully their
right in using this very important tool of the public health policy.
16. The other possibility for those countries is to rely on other Members to issue compulsory
licences.  This is also of no meaning because of the limitation provided for in Article 31 (f), which
restricts the export possibilities.  Although Article 31 allows Members to supply foreign markets, it
imposes, at the same time, a limitation to supply predominantly the domestic market. This could
impede the effective use of this provision.  Ther efore, the UAE believes that such a limitation could
be eliminated as one possible solution.  This could help reaching an expeditious solution as instructed
by the Ministers.
17. The interpretation of Article 30, which allows Members to authorize limited exceptions,
would be an alternative option.
18. The "interpretation of Article 30" approach, if adopted, should provide mechanisms that foster
the transfer of technology and dissemination of pharmaceutical technology and exports of medicines
and other ways to address health needs in a third country.  In short, the interpretation of Article 30
should be broad enough to serve the Council purpose under paragraph 6 of Doha Declaration, as well
as to fulfill the overall objectives of the TRIPS Agreement and the Doha Declaration in its entirety.
19. The interpretation of Article 30 should not omit the initial arguments behind the drafting of
this Article and its related objectives.  The very general wording of Article 30 indicates how difficult
it was for the negotiating Parties to agree on the nature and extent of the exceptions to the exclusive
patent rights. In fact, Article 30 by its nature needs further explanations and interpretations.
20. In this respect, the Council could work on an Interpretative Note to be decided by WTO
Members with the aim of making possible third parties to engage sell and export patented publichealth related products without the consent of the patent holder to address public health needs in
another country.  This would make it possible for export of pharmaceutical products to those countries
with insufficient or no manufacturing capacity in the pharmaceutical sector.
21. Simultaneously, such interpretation, in serving the purpose of paragraph 6 of the Doha
Declaration, should be undertaken without prejudice of the other exceptions to the exclusive rights
initially available to the Members under Article 30 of the TRIPS Agreement.
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