[e-drug] Indemnification of patent liability in WB bidding document? (5)

e-drug
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E-DRUG: Indemnification of patent liability in WB bidding document? (5)
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Dear all,

The reactions by Michele Forzly and Rudolf van Puijmbroek on the
question of indemnification of patent liability are valuable.

However, for sake of lay persons in legal matters, like me and Mahmoud, could we get some examples from real practice?

Is there anyone who can share countries' or procurement agencies'
experiences where the Bank's indemnification clause may have / has been
applicable?

Regards,

Rob Verhage
HERA pharmaceutical consultant
PO Box 4002
Tawajakoerastraat 4
Paramaribo
Suriname
Tel +597 438966
verhager@gmail.com

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E-DRUG: Indemnification of patent liability in WB biddingdocument? (6)
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Rob -

Sorry that the answer is a bit technical but that is the
way it is. This is the nature of real practice though it may
not seem that way. It simply is impossible to give you a one
size fits all answer because the precise array of factors
differs for each country, product and profile of the
parties. Even if you were to get examples these would not
necessarily serve your inquiry and in fact may be a
disservice to you and others.

In the end, you are asking a legal question. Rudolf and I
would be remiss to let you and e-drug readers think that
they could take what we say as a final answer in every
situation. It is sort of like a medical diagnosis: just
because a many people have a particular disease does not
mean you do. It is best to seek an appropriate medical
diagnosis. The same is true for legal matters.

I am happy to speak to anyone on a one by one basis by skype
or phone to offer direction and help sort out the issues for
clarification.

Yours,
Michele

Michele Forzley, JD, MPH
Global Public Health Lawyer, Consultant & Professor
Protecting public health with governance and rule of law
principles
301-565-0680
michele@micheleforzley.com

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E-DRUG: demnification of patent liability in WB biddingdocument? (7)
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Dear colleagues,

I am sure we shall hear from the World Bank on this matter. As you may be aware, many developing countries (particularly the Least Developed Countries- LDCs) have got a special position regarding patent enforcement in their countries. Until 2013 and possibly thereafter, they are not required to enforce patents as far as I am aware in respect to public health concerns. Meaning that they can procure generics under the compulsory licence facility provided under TRIPS. I would imagine, therefore, that any supplier, in this case, the World Bank, would work towards securing the position of the user (the LDC in this case) in regards to patent issues. I would imagine that the World Bank acts to ensure that the LDC is protected in those cases where the WB may not have establised with the LDC what rights that country has as regards a specific product that is still under patent (hence the indemnifaction?). The WB would have had to ensure that all legal aspects as they pertain to trade, would have been addressed. Therefore, would I imagine, that even when procuring a product that is a legal generic product (the product is off patent), the WB would have to establish that indeed the items is available to be made as a generic.

Of course, not being a lawyer, I may be leading you on a tangent here..

Regards,
Bonnie

Bonface Fundafunda PhD., MBA., B.Pharm
Manager, Drug Supply Budget Line
Ministry of Health,
P.O. Box 30205,
Ndeke House,
Lusaka,
Zambia
Tel: +260 211 25 41 83
Fax: +260 211 25 33 44
Mobile: + 260 979 25 29 00
Email: bcfunda@hotmail.com