[Ip-health] KEI Statement on USTR 301 list reference to Thailand

[Benjamin Krohmal]

KEI Statement on USTR 301 list reference to Thailand

"The sanctioning of countries for using legitimate and important
flexibilities in the TRIPS agreement brings shame to all U.S.
citizens who are increasingly seen in Thailand and elsewhere as
bullies and hypocrites."


The following is the statement of  James Love, Executive Director,
Knowledge Ecology International

+1.202.332.2670, mobile +1.202.361.3040, james.love@keionline.orgThis
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USTR's 2007 Special 301 list panders to a handful of trade
associations and special interests.  One example of this concerns the
entry on Thailand.  USTR says:


     "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."


In 2001, the U.S. government signed the Doha Declaration on TRIPS and
Public Health, which said:

     "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.  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."


What Thailand has done is to follow through with the 2001 Doha
Declaration mandate.  What the Bush administration has done is to
sanction Thailand for doing what it is supposed to do: "promote
access to medicines for all."


The Thai compulsory licenses are highly transparent, with long,
detailed explanations and briefings for the company and the public.
They are far more transparent than the uses of compulsory licenses by
the U.S. or other high-income countries.

What is not transparent is the incredibly arbitrary and political
process that creates the 301 list.  Since Thailand is acting legally,
the USTR makes vague allegations that while Thailand has the
"ability" under the WTO rules to issue such licenses, there was
something undefined that the USTR cannot or will not explain that was
worth citing on the 301 list.  If Thailand actually did something the
U.S. claims is contrary to U.S. trade policy, the USTR should at
least be able to explain it.  What is the "due process" for the 301
list?   We should not be giving the impression to the world that U.S.
pharmaceutical industry lobbyists can use USTR to settle commercial
disputes, entirely outside of the framework of global trade rules.

The United States has issued compulsory licenses on patents at least
five times since last May, without any controversy, and the Italian
government has issued compulsory licenses on pharmaceutical patents
three times since 2005, including one in March of 2007.  Thailand is
being singled out entirely because the USTR and the Bush White House
were not willing to stand up to corporate lobbying from Merck,
Abbott, Sanofi and other PhRMA members.

The sanctioning of countries for using legitimate and important
flexibilities in the TRIPS agreement brings shame to all U.S.
citizens who are increasingly seen in Thailand and elsewhere as
bullies and hypocrites.


The Page 27 entry on Thailand:

THAILAND
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.



Benjamin Krohmal
Coordinator - Project on Medical Innovation
Knowledge Ecology International
Tel: +1-202-332-2670 ex. 14
Fax: +1-202-332-2673
ben.krohmal@keionline.org