[Ip-health] **ACTION: Reponse Letter to Smith-Kind re Thailand- Circulate Widely**]

[AMSA JRLD]

--
[ Picked text/plain from multipart/alternative ]
Dear Colleagues =96

 On July 31 2008, 50 Democratic congressmen, led by Representatives Adam
Smith and Ron Kind, wrote to US Trade Representative Susan Schwab to
encourage a harsh response to Thailand's use of compulsory licensing for
HIV/AIDS and heart disease drugs. Between 2006 and 2007, the Thai governmen=
t
issued three compulsory licenses under the allowed flexibilities in the
Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS)
[see KEI's Thailand's Compulsory Licensing Controversy:
http://www.keionline.org/index.php?option=3Dcom_content&task=3Dview&id=3D90=
].
Based on a deficient understanding of TRIPS and pharmaceutical innovation,
the congressmen defended the monopoly rights of pharmaceutical corporations
to the detriment of the Thai patients. Thailand's legitimate efforts to
secure essential medicines for its poorest citizens should be supported by
US citizens and leadership.

In coordination with several national organizations, we have drafted a
sign-on letter to our Democratic congressmen in order to educate them on
legitimate TRIPS flexibility use. Furthermore, we hope they will withdraw
their support for any unwarranted reprisals by the US Trade Representative,
and instead support all struggles that promote access to affordable
lifesaving medicines.
We request your organizational or institutional *sign-on by close of
business this Friday*, *December 19th*. We plan to deliver the letter to th=
e
offices of the Democrat leaders in time for the holidays.
Kind regards for your help.

Contact for sign-on (reply off-list, please):
Mary Carol Jennings, Legislative Director, American Medical Student
Association
864-992-3391 cell
703-839-8407 direct
JRLD(at)amsa(dot)org

**** LETTER FOR SIGNATURES BELOW ****

Dear [Recipient Name]:

We are deeply concerned by your July 31, 2008 letter to the United States
Trade Representative, Susan Schwab, regarding Thailand's legitimate use of
the compulsory licensing flexibility under the WTO Agreement on
Trade-Related Aspects of Intellectual Property Rights (TRIPS, 1994).
Thailand's conduct and compulsory licensing policy unquestionably comply
with TRIPS and the 2001 Doha Declaration on the TRIPS Agreement and Public
Health. Your letter demonstrates an acute misunderstanding of these
international accords, and we are concerned that urging the USTR to
discourage compulsory licensing jeopardizes the lives of patients in
Thailand by restricting access to lifesaving, affordable medicines. As our
incoming administration and Congress pursue a new vision for America, we
call upon you to defend democratic values throughout the world, especially
the right to health.

The letter contains several serious misinterpretations with respect to
Thailand's use of the TRIPS flexibilities and intellectual property and
innovation policy with respect to pharmaceuticals. First, your letter
indicates that compulsory licensing is a mechanism meant to be limited to
situations of "urgent public health needs, such as those resulting from
HIV/AIDS, tuberculosis and malaria." This implies that use of compulsory
licenses is restricted to a narrow number of diseases. In fact, Article 31
of the TRIPS Agreement and Paragraph 5 of the 2001 Doha Declaration indicat=
e
that countries have the right to issue compulsory licenses on any grounds
whatsoever and that the use of the flexibilities is not limited to specific
diseases. In addition, your suggestion that cancer and cardiovascular
disease do not pose as urgent a threat as HIV/AIDS, tuberculosis, and
malaria, and thus are not sufficiently urgent to justify compulsory
licenses, is medically unsubstantiated. In 2003, cardiovascular disease
caused twice as many deaths as HIV/AIDS, TB and malaria combined, at 16
million, 78% of which occurred in the developing world (see 2003 WHO Shapin=
g
the Future, World Health Report).

Second, your assertion that TRIPS requires consultation with patent holders
is inaccurate.  The TRIPS agreement explicitly indicates that prior
negotiations are not required with public, non-commercial use licenses. Thi=
s
describes the compulsory licenses issued for two HIV/AIDS drugs and one
heart disease medication by the Government of Thailand. The Thai licenses
only apply to generics provided to the poor within the public health system=
;
wealthy Thai citizens and medical tourists must continue to purchase
brand-name products. Moreover, though negotiations were not required, there
is an abundance of evidence that Thailand did in fact negotiate with all th=
e
pharmaceutical companies involved over a period of several years before the
compulsory licenses were issued.

Third, the United States is the world's foremost exploiter of the compulsor=
y
licensing flexibility. Your criticism of Thailand's legal use of "public
non-commercial use" licensing for essential medicines given this conduct
sets a discordant tone. Under 28 U.S.C. =A71498, the US has issued thousand=
s
of "government use" licenses to its own government and government
contractors. The United States has previously threatened to circumvent
patents on the antibiotic ciprofloxacin (2001) and forced domestic
production of Tamiflu (2005). The United States routinely uses the =A71498
exception to bypass patents on information and military technologies (i.e.
Blackberry email service in 2005 and Zoltek F-22 jet parts in 2007). If we
are to witness a brighter era of America's moral stature, we must encourage
and allow other nations the same intellectual property flexibilities that w=
e
use.

Finally, your letter incorrectly suggests that patent monopolies in
developing countries promote innovation. Nearly 87% of the pharmaceutical
market is located in the Western countries=97the impact of sales in poor
countries contributes marginally to innovation incentives. Moreover, our
market-based pharmaceutical industry provides few incentives for
pharmaceutical companies to develop truly innovative and therapeutically
significant drugs, which tend to be high-risk, low-return investments.
Instead, drug research is severely concentrated on me-too drugs for chronic
disease for affluent countries, contributing to the neglect of diseases tha=
t
primarily impact developing countries (see Trouiller in The Lancet, June
2002 or Kesselheim in the New England Journal of Medicine, November 2008).
In addition, pharmaceutical companies grossly inflate their out-of-pocket
spending on research & development (marketing costs eclipse R&D expenditure
in every instance). The tenor of your letter encourages the protection of
undeserved patent monopolies, not future innovation. Employing a
market-based incentive system to encourage public-health focused innovation
in this era of highly restrictive intellectual property has failed.

We, the undersigned, hope that you will seriously reconsider the
undemocratic precedent you are setting. We urge you to support Thailand's
legitimate efforts to protect the health of its low-income citizens, rather
than the monopoly rights of pharmaceutical corporations. We insist you hono=
r
our nation's values of equality and responsibility and ask that you withdra=
w
support for USTR threats against Thailand's lawful acts.

With Respect,

1.    The American Medical Student Association
2.    Essential Action
3.    ACT UP Philadelphia
4.    Mike Palmedo, Program on Information Justice and Intellectual
Property: American University, Washington College of Law
5.    Sean Flynn, Professor of Law: American University, Washington College
of Law
6.    Health GAP (Global Access Project)



--
***********************
Mary Carol Jennings
Jack Rutledge Legislative Director
American Medical Student Association
cell: 864-992-3391
JRLD(at)amsa(dot)org
************************