GOE REVIEWS INITIAL COMPULSORY LICENSE PETITIONS

C O N F I D E N T I A L QUITO 000075 SIPDIS NOFORN E.O. 12958: DECL: 2020/02/10 TAGS: ETRD KIPR EINV EC SUBJECT: GOE REVIEWS INITIAL COMPULSORY LICENSE PETITIONS REF: 09 QUITO 998; 09 QUITO 1068 CLASSIFIED BY: Heather Hodges, Ambassador, State, Exec; REASON: 1.4(B),(D) ¶1. (C) Summary. Ecuador's Intellectual Property Institute (IEPI) has received two compulsory license petitions under procedures issued on January 15. The procedures provide the detailed follow-up to Presidential Decree 118, issued in October 2009 (refs A and B),which established access to medicines as a "public interest" and provided a policy framework for compulsory licensing of pharmaceutical products. The petitions were submitted by two companies for the public non-commercial use of Abbott's HIV treatment drug Kaletra. Only one of Kaletra's two components is under patent in Ecuador. Once all documentary requirements are met, IEPI will consult with the Ministry of Health before making a final determination. The GoE has taken pains to draft the compulsory license resolution in a manner it believes will make it difficult to challenge in the WTO. The local Abbott representative expressed doubts that local or foreign manufacturers could effectively copy Kaletra because of the technological complexity of producing the "combination drug." Nonetheless, issuance of a compulsory license would likely reduce the willingness of international research and development pharmaceutical companies to introduce new products in the Ecuadorian market. End Summary. IEPI Issues Compulsory License Resolution ¶2. (U) On January 15, Ecuador's Intellectual Property Institute (IEPI) issued Resolution No. 10-04 P-IEPI providing specific procedures for applying for compulsory licenses of patented pharmaceutical products. (Note, IEPI is currently drafting a resolution to cover compulsory licenses of agrochemicals). The resolution has been forwarded to the Department for translation. According to the resolution, interested parties may apply for compulsory licenses within two categories: public non-commercial use, and commercial use. ¶3. (SBU) The IEPI resolution stipulates that petitions for "public non-commercial use" compulsory licenses must state that production or importation of the licensed product will be used primarily to supply the domestic market and be used for public non-commercial use. For the purpose of the resolution, public non-commercial use refers to "the processes of acquiring pharmaceuticals by Ecuadorian public sector entities to cover (supply) their respective health programs." In essence, if the license will be used to produce or import pharmaceuticals for sale to the government, it will be considered for public non-commercial use, even if the licensee makes a profit in the transaction. The petition also must include a proposal for pricing the product. Note, under WTO Trade Related Intellectual Property Rights Agreement (TRIPs) rules, to be granted a compulsory license, the party seeking the license must have made an effort to obtain authorization from the patent right holder on reasonable commercial terms and conditions, but could not within a reasonable period of time successfully conclude those negotiations. This requirement may be waived in cases of public non-commercial use. ¶4. (SBU) To petition for a commercial use compulsory license, the potential licensee must state that the product to be produced will be used primarily to supply the domestic market and prove that they have attempted to obtain the authorization of the right holder on reasonable commercial terms and conditions, but have not obtained a favorable response within 45 days. This provision does not appear to entitle the licensee to import the product under the compulsory license. The petition must also include a pricing proposal. Two Petitions for Compulsory Licenses, So Far... ¶5. (C) In a meeting February 3, IEPI president Andres Ycaza told Emboffs that IEPI had received two compulsory license petitions. The petitions were from two different companies, but for the same product - Abbott's Kaletra (protease inhibitor for treatment of HIV). Ycaza said IEPI had requested the companies submit additional documentation before it would review the petitions. Once/if all documentary requirements have been met, IEPI will consult with the Ministry of Health for a determination on whether the medicine in question "is used to treat illnesses that affect the Ecuadorian population and that are public health priorities." Should the Ministry of Health make a positive determination, IEPI would then make a final decision on issuing the compulsory licenses. Ycaza passed this information to Emboffs confidentially - please protect accordingly. ¶6. (C) Embassy has alerted Abbott, but has asked that they not give attribution to the Embassy when discussing with GoE officials. Abbott no longer has production facilities in Ecuador; equipment from the company's one production facility was sold in 2005 and the land in 2008. According to Abbott's local representative, Ricardo Lama, the company sells Kaletra in Ecuador under the name Aluvia, and at a vastly reduced "differential rate" of about $90 per month for treatment, versus a cost of around $600 per month in the United States. The name was changed to try to limit smuggling of the product into other markets where cost is higher. Lama said "Kaletra," a combination drug, is not patented in Ecuador, but one of its two components is. He said the production process for Kaletra is technologically complex and would not be easy to copy by local or foreign manufacturers. Abbott produces all Kaletra in a single plant in Germany. So far, no country has issued a compulsory license for Kaletra. ¶7. (C) In speculating about Abbott's response should a compulsory license be issued, Lama said if Abbott receives sufficient royalty payments, it would likely keep Aluvia in the market, since doctors and patients prefer the brand product. However, he doubted Abbott would introduce any new products into the Ecuadorian market. He also noted that Abbott is very concerned about the implications for other markets should Ecuador issue a compulsory license. Action Request ¶8. (C) The local association representing international R&D pharmaceutical companies (Corporacion Industria Farmaceutica de Investigation - IFI) was provided an opportunity by IEPI to review and comment on the compulsory license resolution prior to publication. IFI and some of its members have told Emboffs that they believe the resolution is largely compliant with TRIPs, although some would like to have the negotiation period extended to six months, as currently provided for under domestic intellectual property legislation. In another area, Ycaza indicated that IEPI had consulted with IPR experts at the WTO regarding the definition of "public non-commercial use" within the resolution. Post would appreciate Washington analysis of whether or not this provision is WTO compliant. Comment ¶9. (C) It remains to be seen on what scale compulsory licenses for pharmaceutical products will be sought and issued here. We suspect that enthusiasm may wane once the challenges of producing some of the newest, and most sought after, drugs becomes apparent. Nonetheless, there is potential for real damage not just to the patent holders, but to the health of Ecuadorians as well, due to public administration of inferior copies of patented drugs, or lack of access to new medicines should R&D pharmaceutical companies pull back from introducing new drugs into this market for fear of compulsory licensing. HODGES