[Ip-health] Don't renege on Doha, by Ellen 't Hoen and Pierre Chirac

Fri, 5 Jul 2002 13:03:11 EDT

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In a message dated 3/7/02 06:29:33 GMT Daylight Time, ds20@uow.edu.au writes:

Dear Daya

> I would be little harsh here. 

This is all part of discourse (informed or otherwise): so by all means.

Prof. P. Danzon essentially i> spokeperson for pharmaceutical industry. 

I see that we are making assumptions and premises here already..

> 
> contention)was based on the presumption that parallel importing should be 
> banned because it would lower the profit of pharamceutical industry 
> resulting in lower
> innovation and that pharmaceutical industry would not be able to
> invest money in research. She also told US congress that lower prices
> are because of price control without realising that any such price
> controlled import would invite action under anti-cumping (dumping, is what 
> you mean), countervailing and safeguard measures. 

I think the substance of your argument and criticism is clear. Put simply we 
have an industry that is constructed around a revenue model which relies on 
maintaining control over the supply chain and enforcing its patent rights. 
Yes, WTO rules are now being revealed as being structurally ill-equipped to 
address the nuances of public health needs in developing countries. I share 
the misgivings expressed by a number of individuals and NGO's.

> developing countries is available in my 
> article 'Brazil,
> Pharmaceutical INdustry and the WTO published in The Journal of World
> Intellectual Property'. I think you have missed the literature leading
> to the TRIPS Agreement. Please have a look at "Intellectual Property
> Rights: Global consensus, Global Conflict? Edited by Gadbaw, R. and
> Richards, Timothy J., Westview Pr3ess, Colorado". 

I would not go far as calling it a 'tirade' but there we must disagree. A 
little too strong on the last Daya. I did not realise that other equally 
prominent scholars have been excluded from this space. Found nothing in this 
work, and neither did the "Trade and Law" seminars lead the class down the 
"Road to Damascus" I am afraid.

> patenting part of the TRIPS Agreement is based on manipulation 
> and
> pressure from the Pharamceutical industy. During the TRIPS negotiations, 
> the pharmaceutical indsutry formed an alliance with computer industry who 
> were trying to impose interntionalisatin of copyright.

Power relations, which you no doubt will recognise is one which is not 
exclusive to PhRMA. Indeed it is implicit in any construct where there is a 
dichotomy between "private" and "public" goods. I do not entirely agree with 
the tactics employed by a number of OECD countries and, the use of 
"TRIPS-plus" bilateral agreements. You will no doubt be familiar with PhRMA's 
submissions to USTR. Politicians from the Indian sub-continent cannot be 
absolved entirely of their responsibility and plead helpnesses. A balanced 
view must however be had.

> Professor Robert Hudec has not done any analysis of the TRIPS
> Agreement till as president of the Panel in Canada-Patent Protection,
> he colluded with the EC, Canada and the USA to amend the TRIPS by
> saying that the object and purpose under Article 7 and 8 of the TRIPS
> AGreement are irrelvant to treaty interpretation. In fact, this
> intepretatin led to the Developing countries insisting on one of the
> fundamentals in international treaty interpretation that the object
> and principles must be taken into account while interpreting the TRIPS
> AGreement.  The analysis of Canada-Patent protectin of Pharmaceutical
> products is avialbe in my two of my recent articles 'Brazil,
> Pharmaceutical Indsutry adn teh WTO' and 'India, Pharmaceutical
> industry and the validity of TRIPS'. I think, the second article on
> INdia, I have sent to you. 
> 
I have re-read the articles but regrettably am unable to see the connection 
between your claim and the analysis. Different of course, if I adopt this 
"conspiracy theory". 

I too am unhappy about the viability of corporate pharmaceutical models when 
it affects access to essential medicines. I fear however, the line of 
analysis and premises that underscore your work perhaps runs the risk of 
mischaracterising some of the key questions we should now be asking. I leave 
others to judge your claims.

> rof. Frederick Abbott in his recent article on behalf of Quakers and
> CIPR is doing nothing but trying to resurrect Hudec's decision in
> Canada-Patent Protection and trying to impose conditions on use of
> Article 30 to fulfil the requirement under Article 31.
> My analysis is available in "The Vienna convention on the Law of
> Treaties, ...and Doha Declaration' in SSRN Journals. Please have a
> look at it. If you still have some doubts, please let me know. I would
> be too happy to explain. It would not get through the censoring by
> cptech but I am sending it for general comment. This is quite
> apparent. Just because soembody attaches academic appelations, his
> views do not become the benchmark.
> 

You are most definitely right about the last! Ultimately claims stand or fall 
by the soundness of the arguments and supporting facts. Where economics fails 
to provide answers, perhaps "hard cases" are resolved by reference to 
philosophy. 

Joseph Savirimuthu
The Liverpool Law School
University of Liverpool
Chatham Street
Liverpool
L69 7ZS
email: jsaviri@liverpool.ac.uk
Tel: 0151 794 2806
Fax: 0151 794 2829

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<HTML>In a message dated 3/7/02 06:29:33 GMT Daylight Time, ds20@uow.edu.au writes:
 
 Dear Daya
 
 <BLOCKQUOTE TYPE=CITE style="BORDER-LEFT: #0000ff 2px solid; MARGIN-LEFT: 5px; MARGIN-RIGHT: 0px; PADDING-LEFT: 5px">I would be little harsh here. </BLOCKQUOTE>
 
 This is all part of discourse (informed or otherwise): so by all means.
 
 Prof. P. Danzon essentially is a <BLOCKQUOTE TYPE=CITE style="BORDER-LEFT: #0000ff 2px solid; MARGIN-LEFT: 5px; MARGIN-RIGHT: 0px; PADDING-LEFT: 5px">spokeperson for pharmaceutical industry. </BLOCKQUOTE>
 
 I see that we are making assumptions and premises here already..
 
 I had written a critique of her contention before US Congress which (the <BLOCKQUOTE TYPE=CITE style="BORDER-LEFT: #0000ff 2px solid; MARGIN-LEFT: 5px; MARGIN-RIGHT: 0px; PADDING-LEFT: 5px">contention)was based on the presumption that parallel importing should be banned because it would lower the profit of pharamceutical industry resulting in lower
 innovation and that pharmaceutical industry would not be able to
 invest money in research. She also told US congress that lower prices
 are because of price control without realising that any such price
 controlled import would invite action under anti-cumping (dumping, is what you mean), countervailing and safeguard measures. </BLOCKQUOTE>
 
 I think the substance of your argument and criticism is clear. Put simply we have an industry that is constructed around a revenue model which relies on maintaining control over the supply chain and enforcing its patent rights. Yes, WTO rules are now being revealed as being structurally ill-equipped to address the nuances of public health needs in developing countries. I share the misgivings expressed by a number of individuals and NGO's.
 
 Her analysis of tirade against <BLOCKQUOTE TYPE=CITE style="BORDER-LEFT: #0000ff 2px solid; MARGIN-LEFT: 5px; MARGIN-RIGHT: 0px; PADDING-LEFT: 5px">developing countries is available in my article 'Brazil,
 Pharmaceutical INdustry and the WTO published in The Journal of World
 Intellectual Property'. I think you have missed the literature leading
 to the TRIPS Agreement. Please have a look at "Intellectual Property
 Rights: Global consensus, Global Conflict? Edited by Gadbaw, R. and
 Richards, Timothy J., Westview Pr3ess, Colorado". </BLOCKQUOTE>
 
 I would not go far as calling it a 'tirade' but there we must disagree. A little too strong on the last Daya. I did not realise that other equally prominent scholars have been excluded from this space. Found nothing in this work, and neither did the "Trade and Law" seminars lead the class down the "Road to Damascus" I am afraid.
 
 The whole of <BLOCKQUOTE TYPE=CITE style="BORDER-LEFT: #0000ff 2px solid; MARGIN-LEFT: 5px; MARGIN-RIGHT: 0px; PADDING-LEFT: 5px">patenting part of the TRIPS Agreement is based on manipulation and
 pressure from the Pharamceutical industy. During the TRIPS negotiations, the pharmaceutical indsutry formed an alliance with computer industry who were trying to impose interntionalisatin of copyright.</BLOCKQUOTE>
 
 Power relations, which you no doubt will recognise is one which is not exclusive to PhRMA. Indeed it is implicit in any construct where there is a dichotomy between "private" and "public" goods. I do not entirely agree with the tactics employed by a number of OECD countries and, the use of "TRIPS-plus" bilateral agreements. You will no doubt be familiar with PhRMA's submissions to USTR. Politicians from the Indian sub-continent cannot be absolved entirely of their responsibility and plead helpnesses. A balanced view must however be had.
 
 
 <BLOCKQUOTE TYPE=CITE style="BORDER-LEFT: #0000ff 2px solid; MARGIN-LEFT: 5px; MARGIN-RIGHT: 0px; PADDING-LEFT: 5px">Professor Robert Hudec has not done any analysis of the TRIPS
 Agreement till as president of the Panel in Canada-Patent Protection,
 he colluded with the EC, Canada and the USA to amend the TRIPS by
 saying that the object and purpose under Article 7 and 8 of the TRIPS
 AGreement are irrelvant to treaty interpretation. In fact, this
 intepretatin led to the Developing countries insisting on one of the
 fundamentals in international treaty interpretation that the object
 and principles must be taken into account while interpreting the TRIPS
 AGreement. &nbsp;The analysis of Canada-Patent protectin of Pharmaceutical
 products is avialbe in my two of my recent articles 'Brazil,
 Pharmaceutical Indsutry adn teh WTO' and 'India, Pharmaceutical
 industry and the validity of TRIPS'. I think, the second article on
 INdia, I have sent to you. 
 </BLOCKQUOTE>
 I have re-read the articles but regrettably am unable to see the connection between your claim and the analysis. Different of course, if I adopt this "conspiracy theory". 
 
 I too am unhappy about the viability of corporate pharmaceutical models when it affects access to essential medicines. I fear however, the line of analysis and premises that underscore your work perhaps runs the risk of mischaracterising some of the key questions we should now be asking. I leave others to judge your claims.
 
 P<BLOCKQUOTE TYPE=CITE style="BORDER-LEFT: #0000ff 2px solid; MARGIN-LEFT: 5px; MARGIN-RIGHT: 0px; PADDING-LEFT: 5px">rof. Frederick Abbott in his recent article on behalf of Quakers and
 CIPR is doing nothing but trying to resurrect Hudec's decision in
 Canada-Patent Protection and trying to impose conditions on use of
 Article 30 to fulfil the requirement under Article 31.
 My analysis is available in "The Vienna convention on the Law of
 Treaties, ...and Doha Declaration' in SSRN Journals. Please have a
 look at it. If you still have some doubts, please let me know. I would
 be too happy to explain. It would not get through the censoring by
 cptech but I am sending it for general comment. This is quite
 apparent. Just because soembody attaches academic appelations, his
 views do not become the benchmark.
 </BLOCKQUOTE>
 
 You are most definitely right about the last! Ultimately claims stand or fall by the soundness of the arguments and supporting facts. Where economics fails to provide answers, perhaps "hard cases" are resolved by reference to philosophy. 
 
 Joseph Savirimuthu
 The Liverpool Law School
 University of Liverpool
 Chatham Street
 Liverpool
 L69 7ZS
 email: jsaviri@liverpool.ac.uk
 Tel: 0151 794 2806
 Fax: 0151 794 2829
 </HTML>

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