[Ip-health] Reply - Op-Ed: Brown/Allen pro-Thai CL resolution is "criminally naive"

[B.Baker@neu.edu]

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I have submitted this letter to the editor responding the attack on Thai=0D
CLs and on Senators Brown and Allen for sponsoring the Doha Declaration=0D
Resolution.=0D
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Sally C. Pipes Op-Ed, Don't commend theft of AIDS drug patents, Oct. 18, is=
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rife with misstatements of fact and law.=0D
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First, Thailand is not "stealing" from U.S. drug companies - it is using a=
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lawful flexibility permitting a generic producer to make medicines for=0D
public non-commercial use in Thailand's public health care system.  This=0D
flexibility is lawful under international law, under Thai law in effect=0D
when each of the aggrieved drug companies first filed their patent=0D
applications in Thailand, and under comparable U.S. law that allows any=0D
government official or contractor in the U.S. to take a patented product or=
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process for government use.=0D
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Second, Thailand never rejected an offer of free efavirenz from the Global=
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Fund.  The Global Fund and the new drug procurement fund, UNITAID, have=0D
agreed that UNITAID resources can be used within Global Fund proposals to=
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purchase certain second-line AIDS medicines.  However, Global Fund rules=0D
require countries to try to access the cheapest drugs available - in this=
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case generic drugs.=0D
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Third, Pipes claims that Thailand is trying to develop its own drug=0D
business by having the Government Pharmaceutical Organization manufacture=
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the licensed drugs.  However, at this point in time, each and every=0D
licensed medicine is actually be sourced from generic manufacturers in=0D
India.  Although Thailand hopes to build a world-class pharmaceutical=0D
plant, it has not done so yet, nor would it be inappropriate for it to try=
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to establish a degree of self-sufficiency in manufacturing generic=0D
alternatives to overpriced medicines.=0D
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Fourth, Pipes claims that the TRIPS Agreement allows compulsory licenses=0D
only for some countries and only in the case of health emergencies.  Both=
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of these claims are legally inaccurate - every Member of the WTO, including=
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the U.S., has the right to issue compulsory licenses on any grounds it deem=
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appropriate.  Moreover, such flexibilities are not limited to emergencies,=
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though the presence of an emergency does permit expedited procedures.=0D
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Fifth, Pipes claims that drug innovation will come to a crashing halt if=0D
Thailand issues compulsory licenses.  To the contrary, not only has=0D
Thailand left its private sector, 20% of its health system, open to patent=
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holder's higher priced goods, but Thailand comprises a minuscule portion of=
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t he global pharmaceutical market.  None of these drug companies will have=
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their high-markup, monopoly-priced sales in rich-country market affected,=
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and it is in these markets that drug companies earn 87% of their income.=0D
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Like Pipes says, patents are the goose that lays golden eggs for drug=0D
companies.  However, poorer countries like Thailand cannot afford to pay=0D
gold-standard prices for medicines needed to treat hundreds of thousands of=
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sick Thais.  Instead of condemning Members of Congress, Senators Brown and=
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Allen, who stand up for developing countries=E2=80=99 right to exercise exc=
eptions=0D
to patent rules that the United States has agreed to on multiple occasions,=
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we should congratulate those rare politicians who are willing to stand up=
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the pharmaceutical industry=E2=80=99s political machine, which apparently i=
ncludes=0D
members of GOP candidate Giuliani's campaign advisors.=0D
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Professor Brook K. Baker, Health GAP=0D
Northeastern U. School of Law=0D
Program on Human Rights and the Global Economy=0D
400 Huntington Ave.=0D
Boston, MA 02115=0D
617-373-3217 (office)=0D
617-259-0760 (cell)