TRIPS "safeguards" in use in developed countries
1 November 2001
It must not be thought that the TRIPS safeguards are measures limited to developing countries. TRIPS safeguards are also used by developed countries to protect the health of their population. In1961 in the UK, the antibiotic tetracycline was sold at a comparatively high price by the patent-holder Pfizer. The British Minister of Health therefore authorised the use of the so-called "Crown Use" (government use) provisions of the UK patent legislation to import generic tetracycline from a manufacturer in Italy, without the permission of Pfizer, to supply the National Health Service. Pfizer responded with a legal challenge, but the House of Lords ruled in favour of the Minister of Health. These Crown Use powers continue to exist in the UK patent legislation today. More recently, on 18 October 2001, the Canadian government took the decision to "override" Bayer's patent on ciprofloxacin, an antibiotic used to treat anthrax. Canada made this decision to ensure the availability of medicines needed to protect the public in the event of a bio-terrorist attack. A spokesperson of the Canadian Health Ministry justified the decision: "Canadians expect and demand that their government will take all steps necessary to protect their health and safety." Developing countries want to be able to take equivalent measures to protect their health. Ironically, the Canadian government is one of the WTO Members that has refused to support the developing countries' proposal. In the US, senators have asked the secretary of health and human services to take similar measures to deal with the shortage of ciprofloxacin. According to statute 28 USC 1498, which sets out the rules concerning uses of patents by or for the government, the US government does not have to seek a voluntary license or negotiate for use of a patent - any federal employee can use or authorize the use of a patent. The patent owner is entitled to compensation, but cannot prevent the government from making use of the patent.