17 February 2009
WRITTEN QUESTION by David Martin (PSE) to the Commission
Subject: Patent linkage in the draft EU-Korea free trade agreement Answer
Article 9.9.5 of the draft EU-Korea free trade agreement (FTA) introduces patent linkage into the agreement. Patent linkage is both a TRIPs Plus provision and contrary to EC law. Patent linkage in the EU-Korea FTA may seriously hinder access to affordable medicines and indeed the Commission itself has acted against comparative provisions introduced in the EU. Can the Commission therefore elaborate on the implications of and reasons behind the incorporation of Article 9.9.5 into the draft agreement and clarify how patent linkage can be introduced into an FTA when the Commission itself does not believe it should exist in national EC law?
24 March 2009
Answer given by Baroness Ashton on behalf of the Commission
Negotiations of a Free Trade Agreement (FTA) with Korea are currently ongoing, including on a chapter with detailed provisions on Intellectual Property.
These negotiations on intellectual property have to be seen against the backdrop of other FTAs signed by the Parties, and in particular the FTA signed between Korea and the United States (US) of 30 June 2007 ('KorUS' -- of which the text is publicly available), which provides for detailed provisions related to pharmaceuticals products.
It follows from KorUS that Korea should in principle introduce 'patent linkage' in its legal system. The question of patent linkage being a topic of intellectual property, it has been raised in the discussions between the Commission and Korea, in line with the Commission's overall approach in FTA negotiations to ensure that our FTA partners do not discriminate our economic operators as compared to those of third countries. If and when Korea were to undertake commitments on this issue vis-=E0-vis another trading partner, as is the case with the US, EU companies should in principle also benefit from such commitments.
The Honourable Member is right in pointing out that EU rules do not provide for patent linkage. This is not the Commission's intention to introduce a change of EU rules or EU policy on patent linkage through the FTA with Korea.
The intellectual property aspects of the EU-Korea FTA negotiations are still underway, and the Commission can not, at this stage, prejudge the final outcome of these, which are conducted with the objective of reaching a balanced agreement, taking into account the diverse interests at stake.