E-DRUG: Brazil/WTO case: USTR Response
--------------------------------------
[The last weeks there were allegations that the USA had started WTO
dispute settlement action against Brazil because of its compulsary
licensing procedures that make HIV-drugs affordable.
As the letter of the US Trade Representative shows, the soup is not
so hot - only lukewarm. The main Brazil policy is not affected by
the USA action. The letter is directed to Mr. Gregg Gonsalves who
had written to the USTR about the matter. Cross-posted from
Pharm-Policy with thanks. NN]
Executive Office of the President
Office of the United States Trade Representative
Washington, DC 20508
February 9, 2001
Mr. Gregg Gonsalves
Director of Treatment Advocacy
Gay Men's Health Crisis
119 West 24th Street
New York, New York 10011-1913
Mr. Gonsalves:
Thank you for your letter to Ambassador Robert Zoellick concerning the U.S.
Government's requesst for a WTO dispute settlement panel on Brazil's patent
law. He asked that I respond to your letter, and clarify a misunderstanding
that has arisen about the nature of this dispute.
As you know, last week the WTO established a panel to consider our claim
that Article 68 of Brazil's patent law appears to violate the WTO agreement
on Trade-Related Intellectual Property Rights (TRIPS). Article 68 of
Brazil's patent law provides in part that a compulsory license shall be
issues against a patented product if that product is not being manufactured
in Brazil within three years of issuance of the patent. This appears
inconsistent with TRIPS Article 27, which states that patents shall be
available without discrimination as to whether products are imported or
locally produced.
As such, this dispute is not about health or access to drugs. It is about a
measure that discriminates against imported products in favor of locally
produced products, regardless of whether these products are health-related
or not. By discriminating against imported products, Brazil is not trying
to remedy a situation where patented drugs are not available to the public,
or any other situation which might legitimately warrant the use of
compulsory licensing. Traditionally countries employ manufacturing
requirements to create jobs. This requirement is a discriminatory measure
that is essentially intended to be protectionist.
Please keep in mind that it is Article 71 of Brazil's patent law, not
Article 68, that permits compulsory licenses for the purpose of addressing
national health emergencies. We have not challenged Article 71.
I hope that this helps to clarify the U.S. Government's position in this
dispute over Brazil's patent law. If you have any further questions, please
do not hesitate to contact Claude Burcky on my staff at (202) 395-6864.
Sincerely,
Joseph Papovich
Assistant United States Trade Representative for Services, Investment and
Intellectual Property Rights
--
Send mail for the `E-Drug' conference to `e-drug@usa.healthnet.org'.
Mail administrative requests to `majordomo@usa.healthnet.org'.
For additional assistance, send mail to: `owner-e-drug@usa.healthnet.org'.