[Pharm-policy] CPT and Robert Weissman comments on Brazil case

[James Love]

Jamie Love

"The USTR should clarify the grounds under which it will ask the Brazil
government to consult prior to issuing a compulsory license under
Article 68 of the Brazil Act.  The US government had objected to the
local working requirement, but the joint US Brazil statement seems to
cover the entire Article.  Perhaps this can be cleared up by both
parties.  But more generally, the US government should not insist on
supervising a nation's day to day administration of its patent laws. 
The US is out of compliance with the WTO TRIPS accord in several areas,
for example, state governments cannot be sued for patent or copyright
infringement, under the US doctrine of state sovereign immunity.   Under
what terms would the US government accept foreign supervision of this US
constitutional provision?  It is positive to move away from a
confrontation over the Brazil compulsory licensing act, and to avoid
further confusion, if possible, regarding what is actually permitted
under the WTO agreement.  But the agreement to give the US government
the right to be consulted on each compulsory licensing request is not
helpful, and it is reminiscent of the Gore proposal to South Africa,
that would have had the US government supervise each parallel import
license.  At some point, we have to respect national soversignty, and in
the case of Brazil, let Brazil continue its difficult and costly efforts
to treat poor AIDS patients."


Robert Weissman: 

"Whatever its motivations, the U.S. complaint against Brazil sent an
outrageous message to the rest of the world: Authorizing compulsory
licensing -- even if never actually issuing a compulsory license -- will
get you in a legal tangle with the United States. The dismissal of the
case that never should have been filed is therefore an enormous step
forward. But only time, and the example of a country proceeding to issue
a compulsory license without U.S. interference, will fully repair the
damage."

Robert Weissman, co-director, Essential Action


-- 
James Love
Consumer Project on Technology
P.O. Box 19367, Washington, DC 20036
http://www.cptech.org, mailto:love@cptech.org
voice: 1.202.387.8030 fax 1.202.234.5176 mobile 1.202.361.3040