[Ip-health] MSF letter on Thai CL -- formated in plain text

[James Love]

I think this version will have fewer formating issues for some
people. jamie

http://www.doctorswithoutborders.org/publications/openletters/
torice_12-29-2006.cfm

Letter to Condoleezza Rice, Secretary of State and Ambassador Susan
Schwab, United States Trade Representative
December 29, 2006

Honorable Condoleezza Rice, Secretary of State
U.S. Department of State
2201 C Street NW
Washington, DC 20520

Ambassador Susan Schwab, United States Trade Representative
600 17th Street, N.W.
Washington, DC 20508
United States of America

New York, December 29, 2006

Dear Secretary Rice and Ambassador Schwab:

I am writing to express Doctors Without Borders/M=E9decins Sans
Fronti=E8res (MSF)'s concern that the United States Department of State
and the United States Trade Representative have intervened in the
decision by the government of Thailand to issue a compulsory license
on patents for the AIDS drug efavirenz, and to explain why the US
government should refrain from such actions.

The US government is reportedly asking the Thai government to engage
in prior negotiation with patent owners before issuing compulsory
licenses. Not only is this not required under the World Trade
Organization (WTO) rules when the compulsory license is for
government use, it is not required under US law. What the WTO does
require is that Thailand "promptly" notify the patent owner when it
issues a compulsory license. Thailand has clearly done this. The US
government should not be overseeing the management of Thailand's
dealing with the patent owners as long as Thailand abides by its WTO
TRIPS obligations.

In 2001, the United States government and every other member of the
World Trade Organization (WTO) announced the signing of the Doha
Declaration on TRIPS (Trade-related Aspects of Intellectual Property
Rights) and Public Health. This historic agreement said:

     We agree that the TRIPS Agreement does not and should not
prevent members from taking measures to protect public health.
Accordingly, while reiterating our commitment to the TRIPS Agreement,
we affirm that the 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.

Thailand is obviously trying to do exactly what the Doha Declaration
promised it could. Respecting Thailand's decision to exercise its
right under the Doha declaration is a matter of urgent concern for
Thai patients in need of affordable AIDS treatment.

The drug efavirenz, which is recommended by the World Health
Organization (WHO) for HIV/AIDS treatment, is currently patent
protected in Thailand, and the monopolistic situation has affected
both supply and affordability in the country. The price the patent
holder Merck charges in Thailand (1,400 baht/month =96 US $39) is
double of what Indian generic manufacturers charge for the drug (650
baht/month =96 US $18). In addition, on several occasions, Merck has
been unable to supply the drug in Thailand. It is estimated that at
least 12,000 people in Thailand currently need efavirenz, but that
due to cost and supply difficulties, the number receiving the drug is
significantly lower.

MSF has worked in Thailand since 1976. The organization began
providing ARV treatment to people with HIV/AIDS in 2000 and we have
witnessed the development of the Thai AIDS treatment program. Generic
production is the cornerstone of Thailand's universal HIV/AIDS
treatment program. Before generic production, the cost of standard
HIV/AIDS treatment in Thailand was over 33,330 baht per patient per
month (US $924), and only 3,000 people were getting treatment. In
2002, Thailand launched a generic version of HIV/AIDS triple therapy,
resulting in an 18-fold drop in the cost of treatment. Thanks to
this, over 85,000 people with HIV/AIDS are today receiving treatment.
UNAIDS reports that Thailand is the only Southeast Asian country to
have over half of the total number of people on AIDS treatment who
need it.

Both the WHO (in August 2005) and the World Bank (in August 2006)
have predicted dramatically rising drug costs in Thailand due to the
fact that patients need to switch to newer and more expensive drugs
in cases of resistance and toxicity. Both organizations recommend the
use of public health safeguards enshrined in the Doha Declaration on
TRIPS and Public Health.

Issuing and executing a compulsory license, allowing both importation
and local production, will increase supply and affordability of
efavirenz to the benefit of Thai patients. Creating a competitive
generics market for efavirenz and other newer AIDS drugs that are
patented in Thailand and other markets is critical to maintaining
patients under treatment as natural resistance to first-line ARV
therapy increases, as well as to scaling up ARV treatment.

Thailand's decision will have important consequences, not only for
Thailand, but for any developing country that needs to obtain low-
cost generic products. If Thailand follows through and begins to buy
from generic suppliers, it will create a larger global market for
generic products, stimulate competition, and lower prices everywhere
for the newer products. While the benefits of expanded generic
competition are widely appreciated, many developing countries have
been reluctant to issue compulsory licenses because of fears that the
United States government will oppose such actions and exert pressure.

We ask that the United States government refrain from any opposition
or interference with the Thai efforts to use WTO flexibilities to buy
generic AIDS medicines -- including pressuring or otherwise seeking
to persuade Thailand to engage in negotiations with Merck rather than
proceed to execute the compulsory license it has issued.

Sincerely,

Nicolas de Torrente
Executive Director
Doctors Without Borders/M=E9decins Sans Fronti=E8res (MSF-USA)

Paul Cawthorne
Head of Mission, MSF-Thailand