SBORNÍK 66 SVOČ 2016

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.

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