[Ip-health] Re: [thaifta] the latest comment from the US on the CL issue

[B.Baker@neu.edu]

It goes without saying that the U.S. "unofficial" statement is a near total
repudiation of both the letter and the spirit of the Doha Declaration.
However, the U.S. is very careful not to say that the compulsory licenses
violate the TRIPS Agreement, just was it was careful to say earlier that it
was not contemplating a WTO complaint against Thailand.  Not only is such a
TRIPS-violation position legally preposterous, such a position would also
limit the U.S. to pursuing WTO complaint procedures rather than unilateral
Special 301 procedures under Panel Report, United States-Section 301-310 of
the Trade Act of 1974, WT/DS152/R (Dec. 22, 1999).  Accordingly, the U.S.
statement is carefully worded to challenge Thailand's "unfortunate" C.L.
policy and to recommend that it instead adopt an "improved environment for
innovation through enhanced respect for intellectual property rights."

The irony at present is that the U.S. would have to actually resort to WTO
consultations and dispute resolution if it thought that TRIPS was actually
being violated.  Under these circumstances, unilateral retaliation would be
impermissible.  However, since the U.S.T.R. is claiming mere disappointment
about Thailand's utilization of TRIPS-compliant flexibilities and about
Thailand's alleged failure to adopt enhanced TRIPS-plus IPR protections to
ensure continued investments in medicines, it is free to act unilaterally
as a Pharma bully.  The U.S. further obscures the actual significance of
Thailand's CL's by its wrap-around concerns about IPR enforcement in
Thailand.

The U.S. has also been cagey in allowing the juxtaposition of last year's
withdrawal of duty-free Generalized System of Preferences advantages for $1
billion of Thailand imports to the U.S. to create the impression that these
withdrawals were a retaliatory response to the earlier CLs.  As many other
commentators have noted, however, Thailand's growing strength as an economy
and as an exporter will gradually result in fewer and fewer GSP privileges,
irrespective of alleged IPR concerns.  Moreover, it is important to note
that this elimination of duty-free status has not resulted in the loss of
$1 billion in exports, but merely added a duty of approximately $55
million, raising competitive pressure on Thai exporters and potentially
reducing some of their profits.

Nonetheless, the U.S. uses GSP-withdrawal juxtapositions, Special 301
status, and expressions of concern about Thailand's CL policy as coercive
tools of political pressure and disinformation.  To these "public" efforts,
it adds backroom meetings and secret cables and obscure threats of
disappointment in Washington.

According to official U.S. policy, Indian heart medicines should be
embargoed in warehouses in India rather than be exported to tens of
thousands of patients who would benefit from a generic version costing 1/70
the price of the brandname Plavix product.  The thousands of patients
living with AIDS should go without lower cost efavirenz and
lopinavir/ritonavir.  And cancer patients should simply die, subject only
to the unilateral whim of pharmaceutical executives 12,000 miles away who
will decide how much money they can squeeze from the Thai government and
from the private pockets of Thai patients.  Fortunately, an international
coalition of activists continues to fight this morally repugnant collusion
of state and corporate power.

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)



             Kannikar
             KIJTIWATCHAKUL
             <kakablue@yahoo.c                                          To
             om>                       ip-health
             Sent by:                  <ip-health@lists.essential.org>,
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                                                                        cc

             03/18/2008 07:34                                      Subject
             AM                        [thaifta] the latest comment from
                                       the US on the CL issue










Dear All,
    below is the email to a Thai journalist sent by a
trade counsellor of US embassy.

................

The statement I forwarded was not a formal release.
It is the latest comment from the United States
government on the CL issue.  We do not have anything
more to add at this time.  We will keep you updated
should there be more.

here is the latest on the CL issue.

We view the compulsory licensing issue as a very
serious matter, and part of a broader set of important
concerns about the protection of intellectual property
rights in Thailand.  We would consider a decision by
the new Thai Government to sustain Thailand's recent
policies in this area to be unfortunate.  We
understand that Thailand faces significant public
health challenges.  We hope that Thailand will pursue
policies that achieve public health objectives while
also creating an improved environment for innovation,
including through enhanced respect for intellectual
property rights.  Strong intellectual property rights
are critical to assure continued investments in
life-saving medicines.

Please let us know if you have any further questions
and we will do our best to track down a response."
..................

Regards
Kannikar





Kannikar KIJTIWATCHAKUL (Kar)
Access to Essential Medicine Campaigner
MSF Belgium - Thailand Mission,
522 Mooban Nakorn Thai 14,
Ladphrao Soi 101/1,
Bangkapi, Bangkok 10240
Tel (+66) 2370 3087
Fax (+66) 2731 1432
Mobile (+66) 85-070-8954



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