[Ip-health] Health vs economic interests

[Kannikar KIJTIWATCHAKUL]

Health vs economic interests

Why are the ministries of commerce and foreign affairs
doing nothing to explain to the outside world
Thailand's decision on compulsory licensing?

By APIRADEE TREERUTKUARKUL , Bangkok Post, 4 May 07

In a move that hopefully will instigate all developing
countries to step up their rightful fight for access
to affordable medicine, the Thai government's bold
decision to bypass patent laws on three drugs for the
treatment of Aids and heart ailments is, however,
coming under increasing pressure from domestic as well
as international politics.

>From abroad, the United States' Office of the Trade
Representative's downgrading early this week of
Thailand on its ''Priority Watch List'' of countries
to be closely monitored for protection of intellectual
property rights, is viewed as a punishment for
Thailand's announcement of compulsory licensing (CL)
for the Aids drugs Efavirenz and Kaletra and the heart
drug Plavix.
This downgrade could lead to a lifting of the
generalised system of preferences (GSP) currently
enjoyed by Thai exporters, particularly in the gems
and jewellery sector whose trade volume is worth
around 7.5 billion baht annually.

Despite US ambassador to Thailand Ralph Boyce's
statement that the USTR's decision did not stem from
the compulsory licensing alone, the issue is the only
new reason cited in the Special 301 Report, the USTR's
annual review of the global state of intellectual
property rights protection and enforcement.

Public Health Minister Mongkol Na Songkhla, who
spearheaded the daring policy to give wider access to
important medicines for people who cannot afford
expensive drugs, and Department of Intellectual
Property chief Puangrat Assawapinit, were not really
surprised.

Dr Mongkol insists Thailand's move is lawful and fully
within the framework allowed by the World Trade
Organisation's Agreement on Trade Related Aspects of
Intellectual Property Rights (TRIPS) and that the Thai
people's health should come first.

''We carefully considered the economic interest and
the matter of life and death of the people before
announcing the compulsory licensing. Economic
interests cannot be compared with saving human lives
and protecting the public health,'' Dr Mongkol said.

The health minister said the latest response from the
United States clearly demonstrates the clout American
pharmaceutical companies have on the USTR.

Thailand's issuing of CL has rattled the
multi-billion-dollar ''big pharma'' business from the
very start. Drug firms continue to claim that the move
to forcibly substitute more expensive, patented drugs
for lower-priced generic versions would destroy the
pharmaceutical industry, and make patients happy for a
day but produce long-term shortages.

Thanks to Thailand's implementation of the compulsory
licensing for the Aids drug Efavirenz last November,
the patent owner Merck announced a worldwide price cut
to 725 baht from 1,500 baht per month per patient.

In addition, the announcement of the licences to
override patents for Aids and heart drugs Kaletra and
Plavix in late January has led to radical changes in
the response from Kaletra's patent holder Abbott
Laboratories.

The pharma giant at first declared it would not
register new drugs in Thailand but later changed its
tone to offer a price cut for both Kaletra and its
improved version called Aluvia at an equal price of
3,488.20 baht.

Although the planned CL has not yet been implemented
and the decision to buy either the original or generic
drugs will not be made until the existing stockpile of
these medicines runs low, probably in August, the
movement has evidently proven effective and beneficial
to Thailand.

It has also offered hope for developing countries to
follow in this direction if they hope to have any
bargaining power with the powerful pharmaceutical
business.

There is no doubt the drug companies including the
US-based Abbott will lobby their governments to put
pressure on Thailand for breaking their drug patents.
There is the question, however, that whether the Thai
attempt to bypass patents _ an action permitted by the
WTO _ so as to save millions of lives, should be tied
to the illegal violation of property rights relating
to entertainment or luxury products, leading to trade
retaliation.

''Unfortunately, most people affected by these
diseases are the poor who have neither power nor money
to pay for lobbyists unlike the pharmaceutical giants.

''For a small, low-income, developing country like
Thailand, even if what we've done is the right thing,
it can turn out to look wrong in the eyes of big
countries like the United States,'' Dr Mongkol said.

He added that the United States itself had granted
compulsory licenses for several drugs.

In 2005, the Federal Trade Commission announced a
consent agreement which would protect competition and
consumers in several significant medical device
markets.
Abbott was awarded a compulsory licence for Boston
Scientific's patented stent technology that is now
poised to generate huge profits for the firm, after a
study showed the drug-coated stent was better at
treating clogged heart arteries.

With a per capita GDP of roughly one-sixteenth that of
the United States, the Thai health system is, on the
other hand, under threat of going bankrupt: one of the
biggest expenses is the cost of medical treatment.
A huge healthcare budget has been spent on providing
free drugs under the three health schemes for civil
servants, employees of the private sector and the
estimated remaining 47 million population.

Among these drugs are costly anti-Aids medicines and
those for chronic illnesses such as cancer and heart
disease which are the country's top three causes of
death each year.

Therefore, seeking the right to access cheaper drugs
via compulsory licensing seemed the last resort to
save the national health system.

Is the Public Health Ministry the only Thai agency
which sees the importance and necessity of breaking
the drug patents for the survival of its healthcare
services? And here comes the squeeze from within.
Since the announcement was made several months ago, Dr
Mongkol seems to be the only minister defending the
action. No support has come from such related agencies
as the Commerce or Foreign Affairs portfolios.

Former Bangkok senator and health activist Jon
Ungpakorn pointed to the lack of unity among the
relevant ministries in pushing for the CL to succeed,
as a possible flaw which Washington may have picked up
on before bringing in the trade retaliation.


After this, the US can negotiate with Thai
trade-related authorities who are seen as being more
keen on commercial interests than on in-depth details
related to access to affordable medicine.

''The three involved authorities should have worked
together as a team rather than deserting the Public
Health Ministry to handle the task alone. We're living
in a world of capitalism in which everything, even the
matter of life and death of one person, can be turned
into profit and benefits for others,'' Mr Jon
commented.

''The issue of CL is very important not only for
Thailand but also other developing nations. If
involved authorities of this government fear to do the
right thing for the nation simply because of a threat
from a big country this time, don't even hope that we
will have a chance to fight for anything right in the
future,'' Mr Jon said.

As executive secretary-general of the Aid Access
Foundation, Mr Jon late last month participated in the
annual meeting of Abbott Laboratories stakeholders
held in Chicago, and found there was a lot of
misunderstanding in the eyes of foreigners regarding
Thailand's decision to push for CL, mainly because of
the lobbyists for drug companies. Some claimed
Thailand was breaking the patents for up to 30 drugs.

He believed the Ministry of Foreign Affairs should be
more responsible in explaining the issue _ of
Thailand's necessity and needs _ to the global
community so that they will at least understand that
the action taken has been a lawful one.

Meanwhile, Jiraporn Limpananont, an academic at
Chulalongkorn University's Faculty of Pharmaceutical
Sciences, said it was essential that the Commerce
Ministry and the Department of Intellectual Property
proceed cautiously and leave some room for the
protection of public health when amending the Patents
Act.

The amendment was part of the US' proposal on the
protection of intellectual property (IP) rights, which
would be included in the still-to-be concluded Thai-US
FTA pact. The US has demanded Thailand allow it to
patent not only drugs but also diagnostic, therapeutic
and surgical procedures for the treatment of humans or
animals, which would inevitably force Thais to
shoulder high medical treatment costs.

The US has also called for a three- to 10-year
extension of the patent protection on drugs and
agricultural chemical products.

Ms Jiraporn foresaw that the Thai public welfare
system, including the 30-baht healthcare scheme, would
completely collapse if the government submitted to
Washington's demands.

However, according to the revised version of the
Patents Act that was put to the scrutiny panel of the
Prime Minister's Office and which awaits cabinet
approval for the National Legislative Assembly's
endorsement, the amendment includes an alteration to
Article 7 of the law to allow evergreening patents on
plants and animals, which would enable the patent
holder to extend their patent duration by declaring
new chemical substances.

Another concern is the proposed cancellation of the
pre-grant opposition system. It has been the practice
to allow concerned people to oppose a patent
application before it is granted. However, the
ministry proposed a so-called ''post-grant
opposition'' for the amendment, meaning they would
grant a patent first and listen to any opposition
later.

Ms Jiraporn also said that allowing the Commerce
Minister to identify which illnesses are in line with
the language of the Doha Declaration, was highly
inappropriate.

Banyong Limprayoonwong, deputy director-general of the
Department of Intellectual Property, said that health
officials could not do anything to the amended Patents
Act since it had already passed the revision process.
It was now up to the cabinet's prerogative to either
accept or reject the submitted draft before sending it
to the National Legislative Assembly for endorsement.

Though it may appear that Dr Mongkol and the Health
Ministry have won this round in expanding access to
drugs at more affordable prices for the people, the
battle is proving to be longer and more arduous than
anybody may have thought.

With continuing pressure from the United States and
from our own Commerce Ministry to amend the Patents
Act, it remains to be seen if public health will
triumph over commercial interests and win the war to
make drugs cheaper for everyone in the long run.



Kannikar KIJTIWATCHAKUL (Kar)
Mobile 66-85-0708954
kakablue@yahoo.com



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