The Trans Pacific Economic Cooperation Agreement (TPP) The problem between the right to health and the protection of pharmaceutical patents in the Peru, truth or myth?

The Trans-Pacific Partnership (TPP) or Trans Pacific Partnership Agreement (TPPA) is a trade agreement among twelve Pacific Rim countries: Chile, Peru, Mexico, United States, Canada, Vietnam, Singapore, Malaysia, Brunei Darussalam, Australia, New Zealand and Japan.

The TPP has two major objectives:

• Build an inclusive and high quality TPP that is the support for economic growth, development and employment generation of its 12 member countries.
• Convert To TPP in the instrument basis for the future construction of a Free Trade Area of the Asia Pacific (FTAAP).

1. The Right to Health:

The right to health is inalienable and is applicable to all people regardless of their social, economic, cultural or racial status. Refers to the fact that the person has as a innate condition, the right to enjoy a suitable environment for the preservation of their health, access to a comprehensive medical attention , respect for the concept of the health-disease process and their worldview.

The World Health Organization has pointed out that "the enjoyment of the highest possible level of health that can be achieved is one of the fundamental rights of every human being". This maximum degree of health is achieved if you have access to a system of health protection which will give all the people the same opportunities.

2. The Health System in Peru

One of the main problems in many countries of the world is the access to public health services. This topic is directly linked to the right to health.

The health in Peru is characterized by an epidemiological profile complex in which coexist communicable diseases and chronic diseases that affect all socioeconomic strata. The State is facing these problems with achievements still very limited, among other reasons, because it has not been able to ensure access to medicines that enable people to prevent, reduce or control these problems with success.[1]

This is due to our public health system, characterized by a major fragmentation and segmentation: On one hand we have the central government (through the hospitals of the Health Ministry, the Regional Health Directorate and the Regional Governments) and on the other, the Social Health Insurance - EsSalud (Ministry of Labor and Employment Promotion), the Armed Forces Health Service (Ministry of Defense) and the Health Service of the National Police of Peru (MININTER), which operate autonomously and without any joint. Accordingly, each system operates independently, with its own rules and networks of suppliers, and attends different populations.

3. The TPP : Pharmaceutical patents and the Right to Health

A few local and international organizations such as medical NGO´s, are arguing that the TPP hides serious dangers for the universal access to medicines, which would undermine the public health. This point of view is based on the assertion that the United States would have made abusive approaches to the other countries of the agreement and demanding articles in the TPP that go beyond what was agreed.

We should note that we do not agree with that position, due to the logic of the patent system, which is to give inventors and innovators a right of exclusive exploitation of his invention for a period of time that would allow them to recover the considerable investment in research to be carried out to develop each new product.

Finally, the provisions relating to pharmaceutical products of the TPP, facilitate both the development of innovation in the field of medicines, as well as the availability of generic medicines, without prejudice to the deadlines that the parties required for the implementation of those provisions. It also includes provisions relating to the protection of test data and other undisclosed data submitted for marketing approval of a new pharmaceutical product.

4. Conclusions

a. In conclusion, we can say that the problem raised due to the increase of prices and the prohibition of the entry of generic medicines to our country, between the drug patents and the right to health, is a myth supported by some sectors that are against the TPP.

b. The TPP does not affect the access of Peruvians to medicines. On the contrary, it clearly sets out the obligations in the field of patents and test data protection, as well as their duration deadlines. This makes the peruvian market more attractive to producers of medicinal products of last generation. On the other hand, in addition to the obligations established by the TPP, it also includes provisions that allow to set exceptions and limitations to such obligations, which leave space for the development of internal policies regarding to the access to public health.

Author: Jesús Cuba – Intellectual Property Specialist
Law Firm: OMC Abogados & Consultores

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[1]VALLADARES ALCADE, Gerardo: “EVALUATION OF THE POTENTIAL EFFECTS ON ACCESS TO MEDICINES OF THE FREE TRADE TREATY BEING NEGOTIATED WITH THE UNITED STATES OF AMERICA” Lima, April 2005 http://www.minsa.gob.pe/portada/Especiales/TLC-MINSA/EstudioTLCSalud_ResumenEjecutivo.pdf