201. The representative of the European Communities said that his delegation was prepared to adopt the draft Decision which had been submitted by the Secretariat in March 2002. A number of least-developed country Members had meanwhile expressed concerns on the fact that they would still be required to comply with the mailbox and exclusive marketing rights requirements before 2016. He agreed that exclusive marketing rights were difficult to reconcile with the objectives of paragraph 7 of the Declaration. Although they applied for only five years, exclusive marketing rights arguably had effects similar to those of patents. They did not confer the same rights as patents, as they were limited to the right to offer for sale and to sell. However, their practical effect was that they created a situation of a market monopoly for a period of five years during the extended transition period. This did not match with the spirit of paragraph 7 because generic competition for pharmaceuticals in the beneficiary countries could be hindered even before 2016. On these grounds, he agreed that the exclusive marketing rights requirement could be waived along the lines of the text which had been prepared by the Secretariat.
202. On the other hand, he said that he failed to see how the mailbox provisions could be counter to the fulfilment of the objectives of the Declaration because the only obligation they entailed was to set up a procedure for prospective patent applicants to file a patent application. A mailbox application had to be taken up after the end of the transition period, in 2016 at the earliest. If a patent was then granted, its duration would be limited to the remaining term of protection. Therefore, it was unclear what use a waiver of this obligation would have, but he was open to discuss the subject further.
