[Ip-health] Democrats ask USTR to honor Doha Declaration

[David Serafino]

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The following is a letter to the USTR, signed by Henry Waxman and 25
other members of Congress, asking the USTR to honor its commitments
under TRIPS and the Doha Declaration:

Congress of the United States
Washington, DC 20515

April 9, 2008

Ambassador Susan C. Schwab
United States Trade Representative
600 17th Street NW
Washington, DC 20508

Dear Ambassador Schwab

=09As you conduct the annual =93Special 301=94 review of the global state
of intellectual property rights (IPR) protection and enforcement, we
ask you to pay close attention to issues related to public health and
access to medicines.  Specifically, in determining whether a public
health measure raises concerns regarding the =93adequate and effective=94
protection of intellectual property rights, you should consider not
only the extent to which greater property rights and protections
could enhance innovation, but also the United States' commitment to
respecting measure that improve access to live-saving medicines in
developing countries.

=09A particular concern we have relates to the issuance of compulsory
licenses for medicines.  In the 2007 Special 301 Report, you
downgraded Thailand to the =93Priority Watch List,=94 shortly after it
issued compulsory licenses on three pharmaceutical products.  The
Report included a discussion of concerns about enforcement of
copyright and other intellectual property laws, as well as a
discussion of the compulsory licenses.  The Report appeared to
express concern with a perceived =93lack of transparency and due
process=94 that occurred when Thailand issued the licenses.
Unfortunately, ambiguity in that language has led some to interpret
the Report as condemning the issuance of compulsory licenses as
inherently indicative of a weakened respect for patents.

=09As you know, the use of compulsory licenses, with =93adequate
remuneration=94 paid to the patentholder, is permitted by the WTO
Agreement on Trade-Related Aspects of Intellectual Property (the
=93TRIPS Agreement=94).  In the 2001 Doha Declaration, the United States
and the other 142 WTO Members committed to respecting =93the right of
WTO Members to use, to the full, the provisions of the TRIPS
Agreement,=94 which provide =93flexibilities=94 to enable a Member =93to
protect public health and, in particular, to promote access to
medicines for all.=94  One crucial flexibility is that each Member has
=93the right to grant compulsory licenses and the freedom to determine
the grounds upon which such licenses are granted.=94

=09We are concerned that the USTR's recently released 2008 National
Trade Estimate (NTE) Report on Foreign Trade Barriers inaccurately
characterizes Thailand's authority to issue compulsory licenses.  The
NTE states that =93The United States acknowledges Thailand's ability to
issue compulsory licenses to address public health emergencies,
subject to Thailand's domestic and international legal obligations as
a WTO member.=94  In fact, TRIPS does  not limit compulsory licenses to
=93emergencies,=94 but rather, as discussed above, permits countries to
determine when they are necessary.

=09In the upcoming Special 301 report, we urge you to reaffirm, and to
act upon, the commitment the United States made in the Doha
Declaration.  While other factors may affect the ultimate
determination made in a 301 report =96 and we urge you to consider any
progress made in those factors as appropriate =96 countries should not
be cited for the use of compulsory licenses or other flexibilities in
accordance with international trade rules.

Sincerely,

Henry A. Waxman
Thomas C. Allen
John Lewis
Earl Blumenauer
Jim McDermott
Lloyd Doggett
John W. Oliver
Maurice D. Hinchey
Janice D. Schakowsky
Carolyn B. Maloney
Tammy Baldwin
Michael H. Michaud
Ra=FAl M. Grijalva
Lois Capps
Linda T. S=E1nchez
Dennis J. Kucinich
Shiela Jackson Lee
Niki Tsongas
Hilda L. Solis
Fortney Pete Stark
Wm. Lacy Clay
Louise Slaughter
James P. McGovern
James P. Morgan
Peter A. Defazio
Maxine Waters
Barbara Lee

David Serafino
david.serafino@keionline.org
Knowledge Ecology International
http://www.keionline.org
+1.202.332.2670, fax +1.202.332.2673