E-DRUG: TACD letter to Susan Schwab and Peter Mandelson regarding Thailand compulsory licensing dispute
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This is a letter sent today by the TransAtlantic Consumer Dialogue (TACD) to key US and EC trade officials. The letter concerns the dispute over compulsory licenses on pharmaceutical patents in Thailand.
Jamie
Ambassador Susan C. Schwab
United States Trade Representative
600 17th Street, NW
Washington, DC 20508
U.S.A
Peter Mandelson
European Commissioner for External Trade
European Commission
200 Rue de la Loi
B-1049 Brussels
Belgium
17 March 2008
Dear Ambassador Schwab and Commissioner Mandelson,
The TransAtlantic Consumer Dialogue (TACD) Working Group on Intellectual
Property has long taken an interest in trade disputes involving access
to medicines. According to several news reports and several private
communications, both the United States and the European Union have
actively engaged the new government of Thailand on the subject of the
compulsory licensing of medicine patents. For example, according to one
report concerning the European Commission:/fn1/
<blockquote>
"The Commission has been inconstant contact with the Thai authorities
and has stressed that compulsory licensing, while allowed by the WTO
rules, should be regarded as a last resort option and that negotiations
and collaboration with pharmaceutical companies should be sought. The
EU is hoping that this will be the line of the new Government."
</blockquote>
Likewise, USTR and U.S. Department of State officials have been in close
contact with the Thai government over the decisions to issue compulsory
licenses.
TACD is concerned that private communications from the United States and
European Commission may undermine the Doha Declaration on TRIPS and
public health, an agreement adopted, with great fanfare, at a 2001 WTO
ministerial meeting. That declaration states:
<blockquote>
[W]e affirm that the [TRIPS] Agreement can and should be interpreted and
implemented in a manner supportive of WTO Members' right to protect
public health and, in particular, to promote access to medicines for
all. In this connection, we reaffirm the right of WTO Members to use, to
the full, the provisions in the TRIPS Agreement, which provide
flexibility for this purpose.
</blockquote>
In discussing those flexibilities, the declaration notes: "Each Member
has the right to grant compulsory licences and the freedom to determine
the grounds upon which such licences are granted."
In 2006, Thailand had an average per capita income of $8.19 per day. For
the bottom 80 percent of the income distribution, the average was $5.22
per day. To illustrate the Thai concerns regarding affordability of
products, it is useful to note that the pre compulsory licensing price
for the heart disease drug Plavix was $2 per day, or nearly 40 percent
of the average income of the bottom 80 percent of the population.
There is simply no way that Thailand will be able to honor its Doha
pledge to implement its intellectual property laws in a manner
consistent with access to medicine for all, if the US and the EC (and EU
member states) exert pressure every time Thailand issues compulsory
licenses.
As citizens of the US or Europe, we expect our governments to honor the
terms of the 2001 Doha Declaration.
There is nothing in the Doha Declaration or the TRIPS that makes the use
of compulsory licenses a "last resort." Thailand does not have an WTO
obligation to negotiate with patent owners before issuing a compulsory
license for its own public health programs. Thailand certainly has no
obligation to have such negotiations supervised by U.S. and European
governments.
As a body that advises both the US and the EC on matters concerning
trade policy, we request the following information.
1. Copies of all correspondence between the US or the EC and the
government of Thailand, on the issue of compulsory licensing of medicine
patents.
2. Copies of all correspondence between the USTR, the US Department of
State, and the EC and pharmaceutical companies or trade associations
or their representatives, on the issue of the compulsory licensing of
medicine patents in Thailand.
3. A summary of the US or EC position on the use of compulsory licensing
of patents by developing countries, including an explanation of how the
US and the EC honor their 2001 commitment to the Doha Declaration on
TRIPS and Public Health.
4. For context and perspective, we request a list of all compulsory
licenses issued in the U.S. and Europe since the 2001 Doha Declaration
on TRIPS and Public Health, including but not limited to mandatory
licensing of software protocols and software, mandatory licensing of
patents under the U.S. eBay decision regarding injunctive relief,
mandatory licensing of patents as a remedy to anti-competitive
practices, including cases involving pharmaceutical drug patents in
Italy, and mandatory licensing of patents associated with standards
making.
We also respectively ask for meetings with the US Department of State,
USTR, and DG Trade and DG SANCO, to discuss this issue further.
Thank you very much.
Sincerely:
James Love, KEI
US co-chair,
TACD Working Group on Intellectual Property
Jill Johnstone, National Consumer Council
UK European co-chair,
TACD Working Group on Intellectual Property
/fn1 Sarah Rimmington,"Briefing Note: EU confirms the legality of Thai
generic medicines policy; denies threatening WTO litigation," March 12,
2008, Essential Action. For various conflicting reports regarding trade
pressures, see: Petchanet Pratruangkrai,"EU to ask WTO to rule on
Thailand's drug licensing," The Nation (Thailand), March 10, 2008;
Nicholas Zamiska, "Thai Ministry to Recommend Ignoring Patents on Cancer
Drugs," Wall Street Journal, March 10, 2008; Pongphon Sarnsamak, "DRUG
POLICY, Cancer patients' lifeline, Chaiya backs down on licensing," The
Nation (Thailand), March 11, 2008; Achara Ashay Agachat," USTR: No CL
complaint," Bangkok Post, March 08, 2008; Nopporn Wong Anan, "Thailand
will override cancer drug patents," Reuters, Mar 10, 2008.
TACD Secretariat, 24 Highbury Crescent, London N5 1RX, UK
Tel:(+44)207 226 6663 Fax:(+44)207 354 0607 email: tacd@consint.org
Website: www.tacd.org
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