Off-Course Norse

  • by: |
  • 02/14/2007
The Kingdom of Norway, one of the world's richest nations (due to oil, not salmon) is rewarding bad behavior. Hans Christian Anderson isn't smiling and neither are many of that nation's best trading partners.

In direct contradiction of the spirit of the TRIPS agreement, the government of King Harald V is apparently unwilling to protect pharmaceutical patents. Now it's one thing when the military junta in Thailand decides to demonstrate jack-boot behavior towards intellectual property rights – it’s quite another when it comes from one of the world's wealthiest countries.

The problem arises from Norway's dual system of patent coverage for pharmaceuticals. Prior to January 1, 1992, Norway granted analogous "process" patent protection that applied only to the manufacturing process for a drug's active ingredient. Though Norway began granting full "product" patents for pharmaceuticals after that date, the great majority of drugs sold in Norway today are still covered by weaker process patents.

Analogous process patents provide much weaker protection than product patents, making branded pharmaceuticals vulnerable to generic "copycat" competition. Generic manufacturers have claimed that they have found alternative methods to produce certain branded products that do not infringe the process patent and are attempting to introduce the copycat drugs into the Norwegian market.

The United States and most European nations provide full product patent protections for pharmaceuticals. European countries where this difficulty once existed have taken remedial measures. Finland, for example, recently took action to rectify an identical weakness in its patent laws respecting pharmaceuticals.

Norway wants the full benefit of international pharmaceutical innovation, but is unwilling to contribute its fair share to global costs of biomedical innovation. This is free-riding of the worst order. And what's worse is that the Kingdom's Jamie Love-like behavior punishes many of its best trading partners (those nations home to innovator pharmaceutical companies) while rewarding countries willing to provide anti-TRIPS drugs (such as India and China).

It's not a complicated proposition. Under TRIPS Article 27, Norway has an obligation to provide protection to “any inventions, whether products or processes, in all fields of technology, provided that they are new, involve an inventive step and are capable of industrial application.”

And Norway has an obligation under TRIPS Article 70.2 to grant enhanced rights to existing subject matter that either is already protected in Norway or which meets the criteria for protection under the provisions of TRIPS. The pharmaceutical products under debate existed and were patentable subject matter on the date that TRIPS first applied in Norway. So, once again, Norway has an obligation to provide patent protection.

Does the government of Norway think that just because they are a major oil producer they can disregard their international agreements in the same fashion the Thai junta treats its international agreements? It's shameful that a First World economy should embrace a Third World philosophy of blatant disregard for intellectual property.

In Norway, if it's war against the patent rights of innovator pharmaceutical firms today, who's next?

Center for Medicine in the Public Interest is a nonprofit, non-partisan organization promoting innovative solutions that advance medical progress, reduce health disparities, extend life and make health care more affordable, preventive and patient-centered. CMPI also provides the public, policymakers and the media a reliable source of independent scientific analysis on issues ranging from personalized medicine, food and drug safety, health care reform and comparative effectiveness.

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