[Ip-health] Re: Sen. Brown, Int. Hegemony and Domestic Patent Law

[ds20@uow.edu.au]

Dear Mike=0D
I am really impressed by Sherrod Brown=E2=80=99s letter to his=0D
colleagues regarding implications of the US-Singapore Free=0D
Trade Agreement (FTA) in the field of patent rights when most=0D
of his colleagues were busy forming Congressional Caucus on=0D
so called =E2=80=9CIntellectual Property Promotion=E2=80=9D. A very crucial=
=0D
part of Sherrod=E2=80=99s Brown=E2=80=99s observation pertains to the use b=
y=0D
the US Administration of international treaty negotiations to=0D
introduce changes in the US domestic law. I had discussed=0D
this issue in detail in my article =E2=80=9CPara 6 Solution of the=0D
Doha Declaration, Article 30 of TRIPS and Non-Prohibition of=0D
Exports under the TRIPS Agreement=E2=80=9D (Abstract available at=0D
http://papers.ssrn.com/sol3/papaers.cfm?abstract_id=3D377160=0D
and the full text is available at=0D
SSRN_ID377160_code030222500.pdf). I had brought out the fact=0D
that the extension of patented rights to exports of a=0D
patented product is not permitted either in the USA or in the=0D
European Patent Acts and the USA and the EC are using the=0D
opportunity provided by the Para 6 of the Doha Declaration to=0D
introduce =E2=80=9Cexports=E2=80=9D as one of the additional rights in thei=
r=0D
domestic patent acts through international treaty=0D
negotiations. Although as a working paper this article has=0D
been extensively downloaded and has raised a good debate, the=0D
article was rejected by all the journals published by the US=0D
Universities including those supposedly dealing with human=0D
rights and development till it was accepted by a major=0D
European journal for publications. The article was not=0D
rejected by poster publishers such as Fordham Journals or=0D
Franklin Pierce publications ( IDEA: The Journal of Law and=0D
Technology) or IIC (International Review of Industrial=0D
Property and Copyright Law published by Planck Institute for=0D
Foreign and International Patent). I would not waste my time=0D
and money on sending anything critical of industrial=0D
monopolies to these so called academic institutional=0D
publishers. (Saddam Hussain did not have exclusive=0D
prerogative on poster publications). While I can understand=0D
the rejection of such articles  by the US Journals dealing=0D
with law (most of them are busy publishing articles=0D
justifying governmental assassinations and irrelevance of the=0D
United Nations (Political Assassination as an Instrument of=0D
National Policy-A Symposium, University of Richmond Law=0D
Review, March 2003, American Law and Policy on Assassinations=0D
of Foreign Leaders: The Practice ..by Nathan Canestaro in=0D
Boston College Law Review), it is difficult to understand=0D
blanket rejection of this article by nearly twenty of the=0D
journal dealing with public policy, human rights and=0D
development. While majority of them did not give any reason=0D
for rejecting and did not entertain any correspondence at all=0D
( I had requested them to pick up any one paragraph of my=0D
article and find fault with the analysis)  I received few=0D
referee reports. One of them written by a very prominent=0D
intellectual property academic stated =E2=80=9CThird, it is argued=0D
that =E2=80=9Cmany countries although reserving the right of direct=0D
application of the provisions of the international treaties,=0D
treat the proposals introduced by them or their allies or=0D
incorporated in the international treaties as binding=E2=80=9D. =E2=80=A6It=
=E2=80=99s=0D
unclear to me why a country cannot introduce a provision in=0D
international treaty negotiations when that provision is not=0D
present in its own national law. Is the absence of a =E2=80=9Cfast=0D
track=E2=80=9D type of authority what makes this a constitutional=0D
violation in the USA?=E2=80=9D. In this age of monopolistic hegemony,=0D
it should be easiest for the Pharmaceutical industries or=0D
other monopolistic industries to use so called international=0D
negotiations to introduce any change in the domestic laws=0D
which had been successfully done in the case of US domestic=0D
patent laws and is now being done by incorporating =E2=80=9Cexports=E2=80=
=9D=0D
through so called negotiations where Perez Motta puts up the=0D
pharmaceutical industries=E2=80=99 proposals solidified by the USTR=0D
Moratorium and it becomes a law in the USA and in the EC=0D
domestic patent acts.=0D
The publications aspect I discussed not in the sense it was=0D
discussed in case of =E2=80=9CNature=E2=80=9D or as any grudge but to let=
=0D
members of third world know that what is published in the=0D
Western academic journals and quoted by the USTR as was done=0D
in the case of Amir Attaran and Gillespie White=E2=80=99 article in=0D
so called refereed journals are nothing but cheapest form of=0D
propaganda and should be taken as such.=0D
Daya Shanker=0D