PHARMACEUTICAL INDUSTRY IN EUROPE
5.4 THE INTER-INDUSTRY (HORIZONTAL) IP ORGANIZATIONAL STRUCTURE OF THE
in the US patent statute, INTERPAT did express its support for the European mode of patent application. Following INTERPATʼs meeting in October 1991, one of its senior members commented that the US first to invent system is out of line with the first to file system used in the rest of the world, and leads to discriminatory treatment against non-US inventors.108
By using forums such as the IFPMA and INTERPAT, pharmaceutical MNCs are able to expand their IP organizational structure internationally.
Much broader in scope, the IFPMA uses its special consultative position with international institutions such as the World Bank, WTO and WIPO in order to promote awareness of the IP demands of pharmaceutical MNCs. In addition to its lobbying activities, the IFMPA is one of the most dominant information providers with regard to IPRs. INTERPAT is a much more consolidated forum focusing specifically on IPRs. Given that INTERPATʼs membership is restricted only to pharmaceutical MNCs, its role as an international intra-industry forum for IP consultation is pivotal. It allows companies to submit much more coherent input to their representatives at the various levels of lobbying activities and to resolve tensions arising from different legislative environments.
5.4 THE INTER-INDUSTRY (HORIZONTAL) IP
with IPRs mainly via its High Level Steering Group (HLSG) for Intellectual Property, hierarchically located under the Executive Committee.109 CEFICʼs IPR objectives are very similar to those of the advanced pharmaceutical industry in Europe, as one can learn from CEFICʼs 1998 position paper concerning TRIPs: ʻThe chemical industry is based upon commitment to research and development, improving environmental performance, enhancing the quality of life and sustaining a competitive edge. This is only possible if effective patent legislation is in place.ʼ110 CEFIC also expresses a similar position to that of EFPIA in its opposition to the international exhaustion of IPRs.111
UNICE is the umbrella organization for industry associations and federations in Europe. Created in 1958, UNICE represents about 35 business federations from 27 countries (2000).112 Pharmaceutical companies are represented via their national industry confederations, such as the Confederation of British Industry (CBI) and Bundesverband der Deutschen (BDI).
UNICE devises its policy objectives via five committees: Economic and Financial Affairs, External Relations, Social Affairs, Industrial Affairs and Company Affairs.113 Policy Committees delegate their tasks to different working groups consisting of experts (usually from companies) that are nominated by the national federations.114. IPRs receive special attention under the Committee for Company Affairs.115 Currently, there are eight working groups dealing with various IPR policies: intellectual property, patents, biotechnology, licences, trademarks and designs, copyrights, TRIPs and data protection.116
One of UNICEʼs priorities is to strengthen and secure the international protection of IPRs. Its rhetoric is quite similar to that of EFPIA and CEFIC. For example, according to UNICE, ʻwithout the essential combination of R&D and intellectual property, many European businesses will fail in the face of low-cost foreign competitors, with serious consequences for employment and economies generally in the European Unionʼ.117 Regarding the TRIPs agreement, UNICE considered it to be ʻone of the most fundamental and important consequences of the Uruguay Round and therefore places great importance on correct and timely implementation, notably for patents, by all WTO membersʼ.118
EFPIA, CEFIC and UNICE work closely together, aiming to harmonize their objectives and approach to IPRs. As shown later in Chapter 8, such cooperation took place during preparations to the Seattle ministerial meeting (November 1999). That some corporate IP executives are members of IP committees in EFPIA, CEFIC and UNICE simultaneously is also an important factor in the successful exchange of views between these three forums.119
5.4.2 The International Level – the Trans Atlantic Business Dialogue (TABD) and the US Intellectual Property Committee (IPC) Aside from working closely with regional confederations, the advanced pharma- ceutical industry in Europe also takes part in, and cooperates with, international
interest-group forums. With respect to IPRs, two forums are relevant to the advanced pharmaceutical industry in Europe: TABD and US IPC.
Established in 1995 and representing more than 100 MNCs (2000), TABD aims to influence and shape the international trading and investment system by promoting close and effective interaction between the international business community and the US/EU governments.120 TABD defines itself as a ʻprocess that brings leaders from across the European Union and the United States together with a common goal: to help create a transatlantic marketplace without barriers to trade and investment and to support the multilateral trading systemʼ.121
To date, TABD has five primary work groups: standards and regulatory policy, business facilitation, global issues, small and medium sized enterprises and e-commerce.122 Each group is jointly chaired by CEOs of companies from the EU and the US.123 Overall, TABD has more than 40 working sub- groups (issue groups) covering both sectoral issues, such as pharmaceuticals, telecommunications and electronics, and horizontal topics such as customs, intellectual property and climate change.124
The IPR issue group is hierarchically located under the Global Issues work group.125 Between 1998 and 2000, corporate IP executives from GlaxoWellcome (today GlaxoSmithKline), Pfizer and Time Warner chaired the IPR issue group.126 To a large extent TABDʼs international IPR objectives reflect the interests of the advanced pharmaceutical industry, as well as of other industries such as the film and music industries. For instance, TABD is in favour of strong patent protection (both in scope and duration) and data exclusivity, and opposes international exhaustion and the single community trademark.127 Like INTERPAT, TABD aspires to resolve tensions between EU and US partners.
In 1997 it called for the harmonization of EU–US protection periods of data exclusivity in pharmaceuticals to a minimum period of 10 years, and for the adaptation of their patent systems to bring them closer to the first to file model, thus adopting existing European policies.128
Finally, the advanced pharmaceutical industry in Europe also cooperates with the US Intellectual Property Committee, though mainly via UNICE, representing the IP interests of dominant MNCs from the pharmaceutical, computer, electronics and film industries.129 Among IPC members are companies such as General Electric, IBM, Johnson and Johnson, Merck, Monsanto, Pfizer, Procter and Gamble, Time Warner, and Texas Instruments.130 Cooperation between the IPC and UNICE includes the creation of position papers, joint statements and direct lobbying.
A few examples may be given. In 1988 the IPC, UNICE and the Japanese Federation of Economic Organizations (Keidanren) presented a joint paper reflecting their views on IPRs and GATT.131 The paper called for the introduction of a rule-based agreement with binding provisions that would significantly increase the global protection of IPRs. The three parties stated that they would
continue to cooperate and to coordinate their activities, both internally and externally, in order to monitor and secure negotiations on a comprehensive GATT IP agreement (that is TRIPs).132 In 1998 a joint IPC–UNICE delegation undertook a series of meetings with officials from the WTO, WIPO and the European Commission. Their aim was to present the industry view regarding possible negotiations on TRIPs to the WTO Seattle ministerial meeting (November 1999) and to argue for the rapid and full implementation of TRIPs by member countries.133
In seeking to secure and to promote its international IP interests, the advanced pharmaceutical industry in Europe has expanded its organizational IP build-up beyond the intra-industry spectrum. Direct and indirect cooperation with other IP-based industries, such as the chemical and computer software industries, takes place through various organizations and forums. At the regional level, CEFIC as the primary representative of the chemical industry and UNICE as the umbrella organization of industry federations and associations are the natural partners of the European-based advanced pharmaceutical industry. Not only do EFPIA, CEFIC and UNICE share the same IP interests, but cooperation and coordination between these organization is a necessity given that pharmaceutical MNCs are members of all three organizations (directly in the case of EFPIA and CEFIC and indirectly in the case of UNICE).
At the international level, European-based pharmaceutical MNCs are either part of, or partners with, forums such as TABD and the US IPC (representing the IP interests of well-established and dominant MNCs from several industries).
Active and influential membership in the TABD IPRs Issue Group allows European-based pharmaceutical companies to reach a wider audience from US and European governments and institutions. It also allows pharmaceutical MNCs to cooperate with companies from other industries, such as the movie and telecommunication industries. Cooperation with the US IPC, mainly via UNICE, allows the advanced pharmaceutical industry in Europe to present an additional IP unified front, either via position papers (sometimes jointly with Japan), or through direct lobbying.