Thursday, 22 July 2010

WHO - a response

The efficient John Syekei, has punched out an update on the anti-counterfeiting decision in Kenya for us, and a response to the post immediately below. According to the update, John explains that the WHO template legislation is flawed and states that the Constitutional Court decision over the anti-counterfeiting clause will be a landmark decision.

"The question that begs is whether the Constitutional Court shall in its interpretation of the [Anti-Counterfeit] law, redraft the AC law , re-look at the existing Patent laws in Kenya and issue a judicial comment on them or shall it send it back to Parliament? This decision will definitely redefine the landscape as we know it as relates to Patent protection of branded medicines, Trademark rights and Counterfeit practices." ...

Full text:

"I believe, WHO has admitted its template legislation is flawed.

As an update on the Kenya case ( Kenya being one of the few African countries that has effected a law to legislate against counterfeits) :

Kenya’s Constitutional Court is due to set a date today for a hearing on the inter partes substantive application against the Anti-Counterfeit Act of 2008, of which clauses pertaining to medicines have been suspended pending the court’s decision on whether the law violates the right to health and life. As I had reported earlier, in April 2010, Justice Roselyn Wendoh appreciated that the petitioners would suffer irreparable damage if their plight were not addressed. In her ruling, Justice Wendoh issued a conservatory order on the application of the law to medicines until a verdict is delivered in the case.

Parties enjoined in the case were supposed to file written submissions for the main constitutional application before Jul 22.

Today, the Constitutional Court will confirm that all parties including the Interested parties , have filed their written submissions and then set a date when it will hear each party highlight in brief a summary of their written submissions and their prayers. The Court will ask questions on that day as well.

In my view, this is public interest litigation that touches on the fundamental right to life and the commercial right of patent brand owners and generic pharma brand owners to have fair treatment in Kenya. What stand will the Court take. It is clear , as has been suggested by WHO, that poor legislative drafting has led to this problem. The question that begs is whether the Constitutional Court shall in its interpretation of the law, redraft the AC law , re-look at the existing Patent laws in Kenya and issue a judicial comment on them or shall it send it back to Parliament? This decision will definitely redefine the landscape as we know it as relates to Patent protection of branded medicines, Trademark rights and Counterfeit practices.

My feeling is that, with proper education at the enforcement level- the Inspectors appointed under the debatable AC act who include Customs officers, these problem would not be the mountain it seems to be. The devil is in the details. It is important to Kenyans that they have accessible drugs especially for HIV carriers , looking at the dynamics of poverty in Kenya and the fact that many of those HIV carriers form a large portion of the people who earn less than 1 US Dollar a day.

It is argued that the law contravenes sections of the Industrial Property Act of 2001, including section 58 (2) providing for parallel importation and section 80 on government use. Section 58 (2) waives patent rights pertaining to some products on the market in Kenya or in any other country or imported into Kenya and essentially facilitates, accessibility to affordable medicines by all," With the Industrial Property Act of 2001, Kenya used the flexibilities afforded to least developed countries in the Doha Declaration of 2001 with regards the Trade-Related Aspects of Intellectual Property (TRIPs) agreement.

Health rights activists argue that developed countries ( read big pharmaceutical companies who form a majority of the patent owners) are trying to force TRIPs-plus agendas (intellectual property rights protection that goes beyond TRIPs) regarding medicines on developing countries in favour of IP rights holders.

Activists argue that the Anti-Counterfeit Act of 2008 fails to acknowledge and to specifically exempt generic medicines from the definition of counterfeits. Moreover, TRIPs identifies intellectual property (IP) rights as "territorial rights". IP on medicines would only be protected in the territory where it is registered. However, the Anti-Counterfeit Act of 2008 upholds IP rights registered in countries outside Kenya.

I believe, having looked at the trends the Constitutional Court has been taking lately, that the decision will most likely be in favour of the public interest groups rather than a proper analysis of the law as drafted."

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