Worrying development as Morocco becomes first country required by law to validate European patents in its territory

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NSWP Secretariat

The Moroccan Patent Office (Office of Industrial and Commercial Property - OMPIC) recently formalised an agreement with the European Patent Office (EPO) for validating European patents in Morocco starting on the 1st of March 2015. This mean that patent applications and patents granted in Europe will have the legal effects of Moroccan patent applications and will be subject to Moroccan law. A world premiere, Morocco becomes the first country outside of the European Patent Organisation to validate European patents in its territory.

The International Treatment Preparedness Coalition in North Africa-Middle East (ITPC-MENA), Association de Lutte Contre le Sida (ALCS) and the Collective for the Right to Health in Morocco (CMDS) have come out strongly to denounce this agreement. They argue it is designed primarily to strengthen international pharmaceutical multinational monopolies in Morocco to block the use of lifesaving generic drugs which will have a major impact on the right to health and access to medicines.

According to Himmich Hakima, Chair of ALCS: "Morocco and Europe have diametrically opposed interests in the protection of intellectual property. European countries are exporters of innovation and have an interest in protecting the most of their industry. Morocco is rather consumer of innovation. Instead of comparing to Europe we need to learn from countries such as Brazil, India or the Egypt who apply the protection required by the World Trade Organisation while protecting the public interest including access to health and medicine. These are the main recommendations of international organizations such as the WHO. "

The European Patent Office is known for its permissive patent granting. In 2013, 266,000 patent applications were filed in Europe against only 1,096 requests in Morocco. In Europe, large multinational pharmaceutical companies routinely use the patenting of medicines from minor changes that do not really constitute an invention, lack novelty and are not considered patentable under WTO standards.

With this new agreement, OMPIC will have to deal with as many patent applications as is dealt with in Europe within a period of 18 months as set by the law.   Failure to comply will result in sanctions imposed by the Free Trade Agreement with the United States of America being threatened for each day of delay.

For Mellouk Othman, Advocacy Officer at ITPC-MENA: "With such pressure on OMPIC it is clear that many abusive patents will be issued with a consequent monopoly and market exclusivity granted to multinationals for a period of 20 years on drugs that do not deserve it and for which the health system and the citizen will pay a heavy price. " In addition: "The principle of national sovereignty, according to the WTO requires that the patent applicant makes the process of filing an application with the national authorities of the country where he seeks protection. This agreement also represents a real turning on European tutelage of our patent system, "says Othman Mellouk.

Note that, until recently, OMPIC did not really examine patent applications. These were often issued on the "good faith" of the applicant and on the basis that a patent has been granted in Europe or the United States. The law was amended in 2014 to introduce the patent examination. "It is very unlikely that this time when Morocco introduced this new practice, OMPIC can seriously examine as many applications without being influenced by its European counterpart. The Egyptian Patent Office has 4,000 examiners, which is far from being the case OMPIC with its 15 examiners "said Pauline Londeix, Intellectual Property and Access to Medicines Advisor at ITPC-MENA.

For example, for the drug Sofosbuvir recently put on the market to treat hepatitis C (HCV) by Gilead, the Egyptian patent office recently rejected the patent application on the grounds of lack of innovation and novelty; and concluded that Sofosbuvir does not deserve the grant of an exclusive right to 20 years. Thus, Egypt will be able to use the generic versions of the drug. For cons, the European Patent Office has validated despite the lack of innovation and novelty. India has done the same; the Controller General of Patents, Designs and Trademarks rejected Gilead’s patent application for sofosbuvir.  The patent office decision will allow 49 million people—or 74 percent of the total number of hepatitis C patients globally—access to the drug in countries that had been off-limits to generics under the September agreement between Gilead and the seven Indian drugmakers

Today, with the proliferation of IP and Trade Agreements in Morocco, we are entitled to ask whether the policy in the country is consistent with the efforts of the Ministry of Health to lower drug prices and expand access to health insurance. The current policy seems to favour the profits of the pharmaceutical lobby to the detriment of citizens’ interests while ignoring the recommendations of public health agencies such as WHO.

In a joint statement ITPC-MENA, ALCS and CMDS request the freezing of the agreement and the creation, like in other developing countries, of multi-sectoral national commission including the Ministry of Health and the civil society to develop a National Intellectual Property Policy that takes into account the international obligations concerning the protection but also the level of development of the country and sensitive social concerns including access to medicine and health. The three organszations also call for strengthening South-South cooperation with countries and patent offices that have the same interests and priorities rather than losers partnerships with industrialized nations.

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