[Ip-health] USTR Action Against Thailand: Outrageous, Cynical, Shameful

[robert weissman]

USTR Action Against Thailand: Outrageous, Cynical, Shameful

For Immediate Release
For More Information, contact Robert Weissman, 202-387-8030

Statement of Robert Weissman, director, Essential Action, in response to
USTR's placement of Thailand on the "priority watch" list in its annual
Special 301 Report:

The Office of the U.S. Trade Representative (USTR) has today taken the
outrageous, cynical and shameful step of elevating Thailand to its
"priority watch" list for allegedly providing insufficient protection to
intellectual property.

In its annual Special 301 Report, USTR lists concerns about copyright
and trademark violations in Thailand, but the new development -- and
presumably the one that led to Thailand's elevation to the "priority
watch" list -- is Thailand's issuance of compulsory licenses on three
pharmaceutical products.

USTR knows that Thailand's actions do not violate its international
trade obligations,* and -- contrary to claims by Big Pharma and its
representatives -- the agency does not claim that Thailand is violating
is obligations under World Trade Organization rules. Instead, it
complains that "the lack of transparency and due process exhibited in
Thailand represents a serious concern." That is a deceptive way of
complaining that Thailand issued the compulsory licenses without
previously requesting licenses from the patent holders.

This is deeply cynical claim for USTR to make, since it knows that a)
under WTO rules, Thailand has no obligation to enter into negotiations
for a license before issuing a compulsory license; and b) the United
States routinely issues compulsory licenses for government use without
prior negotiations with the patent holder.

USTR's action is outrageous, because the agency's Special 301 Report
claims that "the United States strongly supports the 2001 Doha
Declaration on the TRIPS Agreement and Public Health." The Doha
Declaration "affirm[s] 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." When in fact a country seeks to exercise its rights
under the WTO -- and fulfill its duties under international human rights
law -- to provide access to important medicines, USTR responds not with
the congratulations that are due, but the threats implied by placement
on the "priority watch" list.

USTR's action is shameful, because it undermines public health. By using
legal methods to authorize price-lowering generic competition on
overpriced AIDS and heart-disease drugs, Thailand has shown the world
what it means to place public health over commercial considerations.
Thailand has been very clear that the savings it accrues will be used to
expand access to important medicines. The message from USTR is that
Thailand should back down -- but worse, that other countries should not
dare to follow Thailand's example.

USTR's Special 301 Report is replete with invocations of the importance
of innovation. No one concerned about public health denies the
importance of innovation -- indeed, many of the public health advocates
most concerned about access to medicines are the most passionate about
spurring medical innovation. Patents, however, are only one tool to
promote medical R&D, and a highly inefficient one, measured by the
amount of R&D they incentivize as compared to cost to consumers.
Thailand has been a leader at the World Health Organization and in other
venues in trying to promote global conversations about how to promote
medical R&D while also ensuring access to medicines. If USTR was
genuinely concerned with this issue, rather than simply representing the
interests of Big Pharma, it would applaud Thailand, join the
conversation and immediately drop its reprehensible bullying of
Thailand, a country with a per capita GDP of roughly one-sixteenth that
of the United States.

---

* For a detailed examination of this issue, see the recent report from
American University's Washington College of Law's Program on Information
Justice and Intellectual Property, available at:
<http://www.wcl.american.edu/pijip/documents/pijip04262007.doc>

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Excerpt from the Special 301 Report, available at ustr.gov

Thailand will be elevated to the Priority Watch List in 2007, reflecting
a concern that the past year has been characterized by an overall
deterioration in the protection and enforcement of IPR in Thailand. The
United States appreciates that many Thai law enforcement officials
continue to work, amid challenging circumstances, to conduct actions
against infringing activity. However, these efforts appear not to have
had a measurable effect on piracy and counterfeiting rates, which remain
unacceptably high. The weak nature of Thailand=92s legislation governing
optical disc media constitutes a particular challenge in addressing the
large scale of pirated disc production. Book piracy, cable and signal
theft, and entertainment and business software piracy have likewise not
been addressed in a meaningful way. Production and distribution of
infringing copies of trademarked products, such as apparel and footwear,
also remain widespread. With respect to all of these areas,
insufficiently deterrent legal penalties contribute to ongoing
infringement problems. In addition to these longstanding concerns with
deficient IPR protection in Thailand, in late 2006 and early 2007, there
were further indications of a weakening of respect for patents, as the
Thai Government announced decisions to issue compulsory licenses for
several patented pharmaceutical products. While the United States
acknowledges a country=92s ability to issue such licenses in accordance
with WTO rules, the lack of transparency and due process exhibited in
Thailand represents a serious concern. These actions have compounded
previously expressed concerns such as delay in the granting of patents
and weak protection against unfair commercial use for data generated to
obtain marketing approval.