[Ip-health] Re:Para 6 Solution & Corruption

[ds20@uow.edu.au]

Dear Prof. Davis=0D
This is in reference to your note on role of money in Para 6=0D
solution on 30 Autgust 2003. Taking money or bribe is not=0D
something new either in India or in other developing=0D
countries but I have been requesting everybody I know to tell=0D
us the circumstances in which Para 6 Solution was steamrolled=0D
on 30 August 2003 as an interpretation of the TRIPS=0D
Agreement. As far as India is concerned, from the newspapers=0D
one could know that then Indian Commerce Secretary Deepak=0D
Chatterjee had insisted that the Para 6 Solution must be=0D
completed before the Cancun Ministerial Conference. No reason=0D
was given why did he insist on completion of Para 6 Solution=0D
before the Cancun Ministerial Conference? Next newspaper=0D
report I had seen was that the Indian Supreme Court had=0D
stayed his appointment as Chairman of Indian Competition=0D
Commission as that post was normally held by High Court Chief=0D
Justices. There is not much to relate these two incidents=0D
except that it appears that immediately after August 30,=0D
2003, the Indian Commerce Secretary retired. Normally I do=0D
not believe the newspapers so that I wont say anything on=0D
this aspect but if anybody knows the facts under which India=0D
agreed to this fraud on its own people by colluding with the=0D
USA and the EC to introduce Revised TRIPS Agreement in=0D
violation of Article IX the Marrakesh Agreement as an=0D
interpretation of the TRIPS Agreement, he or she must come=0D
forward. This is serious. Whether it is a multilateral treaty=0D
or a bilateral treaty or tanks and cruise missiles, the=0D
results are same =E2=80=93 colonization, enslavement and=0D
annihilation.  This discussion pertains to India=E2=80=99s collusion=0D
in a fraud perpetrated by the US-EC trophallaxis. How about=0D
South Africa? How about Brazil? How about Kenya? They all=0D
must have justified to their citizens that heaven is just=0D
round the corner where dying mothers do not have to teach=0D
their youngsters how to dig a grave.  The relationship=0D
between monopolists and the New East India Companies and the=0D
money is not confined to developing countries. When we look=0D
at the US FDA Commissioners, we do not know where they come=0D
from but we all know where they go. When 11 of ex-FDA=0D
Commissioners wrote letters to their Congressmen, they didn=E2=80=99t=0D
mention in any of the letter that they were employed by the=0D
pharmaceutical industry. (PhRMA, Eleven Former FDA=0D
Commissioners Warn of Danger of Drug Importation of to=0D
American Patients, available at=0D
http://www.phrma.org/press/newreleases/2000-08-31.4.phtml).=0D
One of the former FDA Commissioner Mr. David A. Kessler=0D
quoted from the Prescription Drug Marketing Act, 1987=0D
accompanying report 99th Congress that =E2=80=9Cthe foremost danger=0D
comes from so-called =E2=80=9Cgeneric=E2=80=9D drugs produced in developing=
=0D
countries that do not provide product patent for=0D
pharmaceuticals.=E2=80=9D (Uncertain Returns: The Multi-million=0D
dollar market in Reimported Pharmaceuticals, 99th congress=0D
2nd Session 23 (Comm. Print 990GG 1986)). Patricia Danzon=0D
(2000) a lady with academic appellations from the Wharton=0D
Business School reproduced Kessler=E2=80=99s argument before US=0D
Senate by saying =E2=80=98the main economic concern is that=0D
importation would shift product sourcing to the lowest price=0D
foreign country, and this would have a very significant=0D
negative effect on global revenues of pharmaceutical=0D
companies and hence on R&D.=E2=80=99 (Patricia Danzon, Testimony of=0D
the US Senate Committee on Health, Education, Labor and=0D
Pensions, June 13, 2000,=0D
http://www.senate.gov/~labor/Hearings). She does not know=0D
much of economics but she also does not know basic provisions=0D
of the TRIPS Agreement and even the US Patent Law when she=0D
says =E2=80=9CPatent provisions are likely to permit compulsory=0D
licensing and/or importing of copy products in  cases=0D
of =E2=80=9Cnational emergency=E2=80=9D and this may be appropriate provide=
d=0D
that =E2=80=9Cnational emergency=E2=80=9D is narrowly defined.=E2=80=9D (Pa=
tricia=0D
Danzon, Differential Pricing for Pharmaceuticals: Reconciling=0D
Access, R&D, and Patents, CMH Working Paper Series, Paper No.=0D
WG2: 10, Commission on Macroeconomics and Health (A WHO=0D
Commission examining the Interrelations among investments in=0D
health, economics growth and poverty reduction, 2001).She=0D
does not know that compulsory licensing can be issued for a=0D
number of reasons and =E2=80=9Cnational emergency=E2=80=9D is one of the=0D
reasons. Her book =E2=80=9CPharmaceutical Price Regulation=E2=80=9D was=0D
published by the American Enterprise Institute, Washington a=0D
monopolist front organization which recently invited Amir=0D
Attaran to speak on behalf of Pharmaceutical industry in a=0D
talk chained by Claude E. Barfield who along with Groombridge=0D
wrote that parallel imports should be controlled by the=0D
pharmaceutical industry as the developing countries have too=0D
primitive legal system to deal with contractual obligations.=0D
(Claude Bayfield and M. A. Groombridge, Parallel Trade in=0D
Pharmaceuticals; Implications for Innovation, Consumer=0D
Welfare and health Policy, 10 Fordham Intellectual Property,=0D
Media & Entertainment Law Journal 185 (1999). Can you think=0D
of more primitive judicial courts than the Court of Appeal=0D
for Federal Circuit, a purpose driven political=0D
institutions?  The fact that Amir Attaran was made a lecturer=0D
to teach Public Policy, a subject in which he does not have=0D
any qualification at the Harvard University simply shows that=0D
it is the money that got him the brand of an educational=0D
institution. I discussed some of these issues in my=0D
note =E2=80=9CAmir Attaran, Harvard University and Institutional=0D
Prostitution=E2=80=9D some time back. The fact that Amir Attaran=E2=80=99s=
=0D
article =E2=80=9CDo Patents for Antiretroviral Drugs Constrain Access=0D
to AIDS Treatment in Africa? published in  Journal of Medical=0D
Association (JAMA) (Vol. 286, 15, pp. 1886-1892, 2001), peer=0D
reviewed journal according to Amir Attaran without realizing=0D
that it was a plagiarized version of Gillespie=0D
White=E2=80=99s =E2=80=9CPatent Protection and Access to HIV/AIDS=0D
Pharmaceuticals in sub-Saharan Africa (A Report Prepared for=0D
The World Intellectual Property Organization (WIPO) by the=0D
International Intellectual Property Institute (2000). How=0D
many people and institutions would have made money in getting=0D
Amir Attaran the brand of the Harvard University (IIPI, I=0D
think among others is also financed by the pharmaceutical=0D
industry) and getting his article published in JAMA and=0D
ensuring that for this one article, Amir Attaran was invited=0D
to the World Bank and to the US Congress and was discussed in=0D
the WTO by the USTR as a study done at the Harvard=0D
University. The Harvard University was not ashamed of its=0D
linkage with Amir Attaran. The JAMA article was broadly=0D
publicized as an article of great significance by Harvard=0D
news. I remember you called him a cretin. The cretin is right=0D
now Fellow of some Royal Society of International Affairs.=0D
Coming to think of Patricia Danzon, her statement on behalf=0D
of the pharmaceutical monopolies through differential pricing=0D
was reflected by a number of competences including one by=0D
World Health Organization-WTO, Workshop on the Differential=0D
Pricing and Financing of Essential Drugs, Hosbjor, Norway, 8-=0D
11 April 2001 (More Equitable Pricing for Essential Drugs:=0D
What Do We Mean and What are the Issues?, Background paper=0D
for WHO-WTO Secretariat (prepared by the WHO Secretariat)=0D
(2001) and  World Bank June, 2003. World Bank Conference I=0D
think was arranged by Warren Kaplan. The World Health=0D
Conference was not satisfied by the Conference on=0D
Differential Pricing but invited Patricia Danzon to write for=0D
the Commission on Macroeconomics and health Of course, she is=0D
not alone in her endeavor. We have Prof. John Barton from=0D
Stanford University, Prof. Juan Rovira from the World Bank=0D
and many others with academic appellations repeating Patricia=0D
Danzon=E2=80=99s emphasis on market segregation and differential=0D
pricing. The basic concept behind differential pricing is=0D
total market segregation in which goods from developing=0D
countries would not enter in developed market. Barton in fact=0D
suggested that if it is not possible through the TRIPS=0D
Agreement,  it should be done through Prescription Drug=0D
Marketing Act as was done in the USA (John Barton,=0D
Differentiated Pricing of Patented Products, Working Paper=0D
NO. 63, Indian Council for Research on International Economic=0D
Relations, March 2001). This study was also done for the=0D
World Health Organization. Para 6 solution of 30th August=0D
2003 is a classical example of this market segregation.=0D
European Council Regulating No. 953/2003 of 26th May 2003 was=0D
another example of market segregation. Recent convert to=0D
market segregation is F M Scherer who at Hobsjor conference=0D
went ga ga over Ramsay Pricing to state =E2=80=9CFrank Ramsay=E2=80=99s=0D
sprite may yet smile approvingly from its exalted place in=0D
economist=E2=80=99s heaven.=E2=80=9D (F. M. Scherer, The Economics of=0D
Parallel Trade in Pharmaceutical Products, Revised Summary=0D
for WTO-WHO Workshop April, 2001).=0D
=0D
Do you  think money was not involved in the joke called the=0D
Medicines Equity and Drug Safety Act of 2000, Appropriation=0D
Bill for Food and Drug administration, P.L. 106-387, section=0D
745, Oct. 28, 2000 practiced by US Congress and Donna=0D
Shalala, the Health Secretary on American citizens? Do you=0D
think money was not involved in Keith Maskus=E2=80=99s appointment to=0D
World Bank? His book =E2=80=9CIntellectual Property Rights in the=0D
Global Economy=E2=80=9D published by the Institute for International=0D
Economics says =E2=80=9C.parallel imports  would result in reduction=0D
of technology transfer and local production and innovation  =E2=80=A6=0D
which is best illustrated clearly by South African=0D
legislation p[assed in 1997 that aims to offset the=0D
anticipated impact of patents on drug prices (USTR 1998). The=0D
law permits the Minster of health to overturn the patent=0D
rights of pharmaceutical firms if it is deemed necessary to=0D
reduce the cost of cost of medicines in South Africa allows=0D
parallel imports of medicines; and mandates =E2=80=A6 By invoking the=0D
broad authority allowed to set ancillary competition and=0D
pricing rules in patented products, it does not necessarily=0D
violate the letter of agreement-though this remains subject=0D
to clarification. However, by effectively denying the pricing=0D
power implied in the exploitation of patents, it possibly=0D
violates the intentions of the TRIPS accord.=E2=80=9D Can you think=0D
of crookest job application? His suggestion that developing=0D
countries should enforce strict patent regulations so that=0D
they can export handicrafts must be quite a cruel joke on=0D
developing countries. Do you think Adrian Otten from the=0D
TRIPS Council suggesting that the econometric study should=0D
show that the TRIPS Agreement has led to higher standards of=0D
health shows trace of honesty?=0D
WE have always insisted that the economic benefit of=0D
monopolization has  always been in doubt (there has been no=0D
study economic or otherwise confirming that monopolization=0D
has led to any growth in  economic welfare, See Michele=0D
Boldrin and David K. Levine, Perfectly Competitive=0D
Innovation, Working Paper, Federal Reserve Bank of=0D
Minneapolis, Working Paper, 2003) but the monopolization has=0D
always been linked to corruption. The developments in=0D
developed countries which I have discussed above and=0D
developing countries which we have just witnessed in Para 6=0D
Solution of 30th August 2003 or Argentina-US Mutually Agreed=0D
solution or a number free trade agreements  with extensive=0D
introduction of monopolization primarily with the developing=0D
countries displays unmitigated corruption linked to the=0D
monopolization.=0D
Does anybody know which part of the Para 6 Solution dated=0D
30th August 2003 is an interpretation of the TRIPS agreement?=0D
Which part in the TRIPS Agreement says that parities to the=0D
compulsory licensing under Article 31 would report to the=0D
TRIPS Council for permission to import? Which part of the=0D
TRIPS agreement says that Members to export patented products=0D
would have to take permission from the TRIPS council to=0D
export the patented products?=0D
=0D
Daya Shanker=0D