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February 19, 2009


I must have missed the "crisis" in TRIPS-compliant compulsory licenses. A handful have been issued, and USTR overreacted (especially at Thailand and Brazil), but since when do we call something a "crisis" when the rule of law is followed in an international treaty? Can you point to anything in TRIPS that limits compulsory licenses to AIDS? That position was explicitly rejected in TRIPS. See http://ssrn.com/abstract=1090270.

Doha is a threat to PhRMA? Do you mean the Doha par. 6 process, now found in Art. 31 bis? One successful effort in 5 years; Apotex says the process was so cumbersome (at PhRMA insistence) that they'll never do it again. The modest quantity of AIDS drugs went to Rwanda. This is not a threat to patent-based drug companies. See the Paige Goodwin article in the latest volume of the American J. of Law & Medicine.

And then you say: "... the levels of protection may be lower in the post-TRIPS world than they were before the GATT treaty was signed."

Really? I'd love to see the list of PhRMA execs that pine for those halcyon days before TRIPS.

And that's just the first paragraph.

Dear Kevin:

Thanks for your perspective. We've been talking about this for a year or so; the earlier posts are cited in this one.

It wasn't just the USTR that "overreacted," the EU reacted in similar fashion. And it wasn't just Rwanda, it has been Brasil and Indai and Thailand and China. And it isn't just AIDS drugs, it includes Plavix and a number of anticancer drugs.

And the reason those "halcyon" days might be considered to be so is that countries, expecially Brasil, China and India, get the benefit of WTO membership (and the avoidance of tariffs and other barriers to markets like the US) without any real change in their own protectionary practices with regard to Western pharma.

But we realize that there is a problem - indeed, we have suggested (and suggest now, if you read past the first paragraph) that Western companies cannot hide their heads in the sand of the polical reality that LDC governments are doing precisely what they should be doing - acting to protect their citizens. We are not criticizing those countries or their governments; if anything, we have suggested that Western companies need to adapt to the political realities and not act as if TRIPS and GATT give them free reign to enjoy the kind of profits in LDCs that they enjoy in Europe and the US.

So the crisis isn't countries following the rule of law; it's the consequences of countries doing just that, and the crisis is for Western pharmaceutical companies.

Thanks for the comment.

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