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The final draft of the TPP does not include some of the most controversial and
restrictive provisions. For example, the US reached compromise on the biologics data
exclusivity, which should have originally been twelve years and in the final draft is only
five. However, this might not mean that the US really reached a compromise in the
TPP negotiations. The fact that some of the most controversial propositions are not
included in the TPP might be due to the US negotiation strategy.
The negotiators may propose unacceptably restrictive provision and offer that they
will step back from their demand, if the other countries do the same with their propo-
sitions. For example, the US apparently gave up their proposition for patentability of
medical procedures in exchange for Japan accepting their proposal for patentability of
new use of an existing drug. This strategy might not be necessary to apply on a bilateral
forum, where the negotiation style is often “take it or leave it” and the trade partner has
limited chance to force his interest over the US negotiators.
VI. b) The Impact of TRIPS-plus provisions on public health
The US negotiation strategy relies on the economic power of the country and does
not take into account the interests of their negotiation partners, especially of the de-
veloping countries. Whereas there are many reasons to criticize this strategy, the fact
is that the US concentrate most the world’s pharmaceutical research and subsidise
it from their own budget. One may therefore argue that, given that without the US
research, the life-saving drugs would probably not exist, the US interests in the IP pro-
tection deserve a slightly better protection than the interests of their trading partners.
On the other hand, the fact is that the TRIPS-plus provisions in RTAs have a nega-
tive impact on public health. The negative impact is present both in developing and
developed countries.
The increased protection of the interests of original drug companies blocks generic
producers from entering the market. This is especially the case of evergreening. By pro-
viding repetitive patents on different uses of the same drug, the generic companies can-
not enter the market and provide more affordable medicines. This is dangerous especially
in the least developed countries. For example, the Doctors Without Borders organisation
uses over 70% of their antiretroviral HIV drugs from cheap generic production.
However, the lack of generic drugs production negatively impacts the patients in the
developed countries as well. Even though their medical treatment is often covered by
health insurance, the lack of cheap medicines leads to higher insurance fees.
Sometimes, the TRIPS-plus provisions in RTAs introduce regulations that are al-
ready present in the national law of the signatory country. Even though it may seem
that such RTAs do not have any negative impact on public health, the opposite is the
truth. Agreement to a patent-protective TRIPS-plus provision prevents the country
from adopting reforms that could improve the access to healthcare in the future.