[thaifta] Re: [Ip-health] USTR Nat. Trade Barriers Report on Thai compulsory licenses

Wed Apr 2 14:47:23 2008

I don't think the fact that Thailand did not "voluntarily" agree to any of =
this is "insulting." I am truly unsure whether history can ever be "insulti=
ng." It just is what it is. I also think that to call the present period as=
 one of colonialism or post-colonialism is not inaccurate.

Finally, of course, does it even barely matter if it is insulting? How coul=
d that possibly matter to people being abused by large corporations and the=
ir carefully constructed international enforcement mechanism? If Guantanamo=
 doesn't suit some, how about likening this to a global mafia which is righ=
t now making noises that sound like threats of kneecapping? Certainly that =
is apt, isn't it?

Is it really good politics to offer the mafia a more "reasonable" deal?

Mickey Davis
_________________________________

Prof. Michael H. Davis
Professor of Law
Cleveland State Univ. College of Law
1801 Euclid Ave.
Cleveland, OH 44115-2214 (mailing address: 2121 Euclid Ave. LB 234)
216-687-2228
_________________________________
Patent Attorney Admitted to Practice Before the US Patent and Trademark Off=
ice Reg.No. 45,863

-----Original Message-----
From: B.Baker@neu.edu
Date: Wednesday, Apr 2, 2008 1:29 pm
Subject: Re: [thaifta] Re: [Ip-health] USTR Nat. Trade Barriers Report on T=
hai  compulsory licenses
To: michael.davis@law.csuohio.edu
CC: "Miles Teg" <b.miles.teg@gmail.com>,      "Untitled" <ip-health@lists.e=
ssential.org>, thaifta@lists.riseup.net

Miles and Mickey have raised sensible questions about whether it is
>politically wise to raise royalty rates in the hopes of encountering less =
resistance from patent holders and their governmental proxies in the USTR a=
nd European Union.  It may well be that there is no real appeasing of oppon=
ents to lawful utilization of TRIPS-compliant compulsory licenses - that th=
ey will always use disinformation and misinformation to challenge CLs and w=
hatever royalties are paid.
>
>Evidence of such continuing opposition can be found in the still strident =
attacks against Thailand's recent compulsory licenses on cancer drugs, even=
 though Thailand raised the royalty rate from .5% to 5%.
>
>All that Article 31 of the TRIPS Agreement requires is that "the right hol=
der shall be paid adequate remuneration in the circumstances of each case, =
taking into account the economic value of the authorization." This clause g=
ives wide latitude to governments to assess the circumstances and the econo=
mic value of the license.  As Jamie Love's detailed study of remuneration r=
ates showed, countries can make such choice by weighing factors or pursuant=
 to percentage royalty guidelines, so as long as
>individual determinations are made in each case.
>
>However, contrary to Miles' and Mikey's critique, I think it is useful for=
 ATM activists to speculate about royalty rates that "might" reduce
>political opposition and about royalty schemes that might actually increas=
e research and development into neglected diseases and/or spur increased R&=
D activity in developing countries.  There is no presumptively "polically c=
orrect" royalty rate, and Thailand engaged in a politically astute,
>self-determined decision to raise its royalty rate on the new cancer CLs. =
Did they do so as Guantanamo prisoners or as colonial subjects - I think th=
e suggestion is a little insulting.
>
>Professor Brook K. Baker, Health GAP
>Northeastern U. School of Law
>Program on Human Rights and the Global Economy
>400 Huntington Ave.
>Boston, MA 02115
>617-373-3217 (office)
>617-259-0760 (cell)
>
>
>
>-----thaifta-owner@lists.riseup.net wrote: -----
>
>
>To: "Miles Teg" <b.miles.teg@gmail.com>
>From: michael.davis@law.csuohio.edu
>Sent by: thaifta-owner@lists.riseup.net
>Date: 04/02/2008 10:45AM
>cc: "Untitled" <ip-health@lists.essential.org>, thaifta@lists.riseup.net S=
ubject: [thaifta] Re: [Ip-health] USTR Nat. Trade Barriers Report on Thai c=
ompulsory licenses
>
>There is no reason for them to do that. It is a classic trap, the kind of =
advice you would give to a prisoner at Guantanamo ("Behave and we won't tor=
ture you.") It also smacks too much of the unstated "Trust me," which is ne=
ver advice you should take from an adversary.
>
>Mickey Davis
>
>> Why should developing countries reduce their legal flexibility to
> determine royalty rates by such "self regulation"? Is it a realistic
> that opposition to CLs in developing countries would reduce?
>
>> bmt
>
>> mko wrote:
>> I agree that middle-income countries should explore higher royalty rates
>> on
>> generically-priced drugs sold under a CL.  Doing so wouldn't harm access
>> much; indeed if the higher royalty reduced opposition from USTR & IFPMA,
>> then access could be dramatically improved.  I've tried to model these
>> CL
>> royalties or patent buy-outs from the opportunity cost in R&D from the
>> foregone revenues:
>>
>> http://papers.ssrn.com/sol3/papers.cfm?abstract_id=3D873402
>>
>> Kevin Outterson
>> Boston University
>>
>>
>> On 4/1/08 9:54 AM, "B.Baker@neu.edu" <B.Baker@neu.edu> wrote:
>>
>>
>>> I think there are four interest facets of the U.S. statement in the
>>> Thai
>>> NTB report (reprinted below).
>>>
>>
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>
>
>Mickey Davis
>_________________________________
>Prof. Michael H. Davis
>Professor of Law
>Cleveland State Univ. College of Law
>1801 Euclid Ave.
>Cleveland, OH 44115-2214
>(mailing address: 2121 Euclid Ave. LB 234)
>216-687-2228
>_____________________________________________________________
>Patent Attorney Admitted to Practice Before the US Patent and Trademark Of=
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