Dutch ask for EU help on Indian seizures
This article was originally published in Scrip
It seems the Dutch themselves are just as confused on the legality of their actions on the seizures of Indian made generics in transit to developing countries. The Dutch Ministry of Economic Affairs told Scrip it has written a letter to European Commissioner for taxation and customs union, L�szl� Kov�cs, asking him to shed some light on the matter.
The letter, which was sent last week, asks the commissioner to find a solution to the controversial EU regulation on intellectual property rights enforcement (No 1383/2003) and obligations under the World Trade Organization's IP rules, TRIPS.
"Sometimes there is confusion between intellectual property rights in EU law and the TRIPS agreement. How to find a solution to this?" a spokesperson to the ministry of economic affairs said. However, he stressed that Holland was committed to access to medicines to developing countries.
To date, the EU has said the actions of the Dutch were in conformity with EU and WTO law, which allowed customs bodies to detain goods if they suspected an infringement of intellectual property (scripnews.com, February 5th, 2009).
The ministry of economic affairs spokesperson would only confirm that two shipments had been detained by the Dutch customs to date (Dr Reddy's losartan and Aurobindo's abacavir) under EU law and would not comment on the more than 12 cases alleged by Brazil last week (scripnews.com, March 5th, 2009).
In the losartan case, the patent-holder informed the customs authority of the consignment, but in the case of the HIV drug, abacavir, the customs authority took its own initiative, he added.
He also would not comment on the destruction of any of the seized goods. Cipla has said its legal action against the destruction of its formulations of olanzapine and rivastigmine by Dutch customs (due to occur on March 10th) has succeeded (scripnews.com, March 5th, 2009).
"We are still trying to work out the details of the cases with the ministry of finance," the ministry of economic affairs spokesperson added. However, the Dutch public prosecutor is looking into whether the abacavir consignment, which was destined for Nigeria, will be freed up.
It seems that it is only the Dutch that have been seizing Indian made generics in the EU. But the spokesperson says it could have happened anywhere in Europe. Part of the reason could be that Holland is a large transit country.
Europe's generics want resolve
Separately, Greg Perry, the director general of the European Generic medicines Association (EGA), has also written to Commissioner Kov�cs for a solution to the problem, saying the EU regulation goes beyond the obligations in the TRIPS agreement. "We ask the EU to initiate open dialogue with other countries and interested parties to resolve this situation," he says.
The generics industry association is also concerned about detention provisions on transit goods being requested by the EU to third countries to be included in EC free trade agreements.
It says it would support the moves if they applied to counterfeit goods, but would be concerned it they applied to goods which are covered by patents in the transit country but are patent free in the country of origin and destination. It says it will create a barrier to the legitimate trade in generic products.
The EGA says alleged patent infringement cannot be confused with counterfeit goods.