44. The representative of the United States said that the documents provided by the Secretariat and Switzerland demonstrated the growing consensus in certain areas among the Members which would help in finding an expeditious solution by the end of the year. The area where there was some commonality were product scope and diseases. He said that he was against an overly narrow interpretation of diseases but, at the same time, it was clear that the language of paragraph 1 was an indication of the gravity and seriousness of the situation of some epidemics that had caused Members to focus on them. The reference to the pharmaceutical sector in this context was not, in his view, a reference to all areas of technology. In this context, he agreed that some constructive ambiguity would be useful in the interpretation. It was more difficult to agree on the countries that were to be included as beneficiaries of such an arrangement. He said that in the run-up to the Declaration, it was clear that least-developed countries, as well as low-income developing countries with insufficient manufacturing capacities in the pharmaceutical sector, were clearly intended to be included within the solution. He agreed with other countries that there was a need to have an objective set of criteria to decide which of the low-income developing countries would be eligible and the circumstances under which they would benefit. For developing countries that had a sizeable generic pharmaceutical capability and possessed the technical capability to produce active ingredients and pharmaceuticals and chose not to do so, it would not be tenable to suggest that they should be equated with the countries for which a solution was being discussed. Such countries were not, in fact, countries with insufficient or no manufacturing capacity in the pharmaceutical sector. The representative said that he was pledging himself, along with other Members, to develop some objective criteria so that countries could assess for themselves if circumstances existed for them to take advantage of the solution. On the question of categories, he underscored the point that, without objective indicators, there would be no legal certainty. Legal certainty was desirable as an assurance for the countries that would be exporters under the provision, as well as for Members in the Council, that the solution would only be used for the purposes for which it was intended. Without such certainty demands for additional safeguards and burdens were going to increase. On the issue of suppliers, he said that to include developed countries would be to reduce opportunities and incentives for domestic or foreign investment and technology transfer to developing countries since, in such a case, markets could simply be supplied from the developed world.
45. The representative continued that he was quite interested to hear that the WHO had taken a specific position and had made a recommendation to the TRIPS Council on how to conclude the paragraph 6 solution. The representative said that, as an active Member of the WHO, he was unaware that any decision had been taken to provide such a recommendation, on behalf of its members, to the Council. He said that he welcomed the report of the WIPO that exposed some of the myths associated with the intellectual property system. He said that, as pointed out in this paper, it was a myth that problems associated with access to health care and life-saving drugs were primarily due to the patent system and that this myth underlay a lot of the positions and assumptions that had been made as part of the debate so far. He welcomed the opportunity for the Council to hear the WIPO's contribution to this debate.
