KEI Statement on USTR 301 list reference to Thailand

Monday, 30 April 2007

"The sanctioning of countries for using legitimate and important flexibilities in the TRIPS agreement brings shame to all U.S. citizens who are increasingly seen in Thailand and elsewhere as bullies and hypocrites." 


The following is the statement of  James Love, Executive Director,  Knowledge Ecology International

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USTR's 2007 Special 301 list panders to a handful of trade associations and special interests.  One example of this concerns the entry on Thailand.  USTR says:

"in late 2006 and early 2007, there were further indications of a weakening of respect for patents, as the Thai Government announced decisions to issue compulsory licenses for several patented pharmaceutical products. While the United States acknowledges a country’s ability to issue such licenses in accordance with WTO rules, the lack of transparency and due process exhibited in Thailand represents a serious concern."

In 2001, the U.S. government signed the Doha Declaration on TRIPS and Public Health, which said:

"the [TRIPS] Agreement can and should be interpreted and implemented in a manner supportive of WTO Members' right to protect public health and, in particular, to promote access to medicines for all.  In this connection, we reaffirm the right of WTO Members to use, to the full, the provisions in the TRIPS Agreement, which provide flexibility for this purpose."

What Thailand has done is to follow through with the 2001 Doha Declaration mandate.  What the Bush administration has done is to sanction Thailand for doing what it is supposed to do: "promote access to medicines for all."

The Thai compulsory licenses are highly transparent, with long, detailed explanations and briefings for the company and the public.  They are far more transparent than the uses of compulsory licenses by the U.S. or other high-income countries.

What is not transparent is the incredibly arbitrary and political process that creates the 301 list.  Since Thailand is acting legally, the USTR makes vague allegations that while Thailand has the "ability" under the WTO rules to issue such licenses, there was something undefined that the USTR cannot or will not explain that was worth citing on the 301 list.  If Thailand actually did something the U.S. claims is contrary to U.S. trade policy, the USTR should at least be able to explain it.  What is the "due process" for the 301 list?   We should not be giving the impression to the world that U.S. pharmaceutical industry lobbyists can use USTR to settle commercial disputes, entirely outside of the framework of global trade rules. 

The United States has issued compulsory licenses on patents at least five times since last May, without any controversy, and the Italian government has issued compulsory licenses on pharmaceutical patents three times since 2005, including one in March of 2007.  Thailand is being singled out entirely because the USTR and the Bush White House were not willing to stand up to corporate lobbying from Merck, Abbott, Sanofi and other PhRMA members.

The sanctioning of countries for using legitimate and important flexibilities in the TRIPS agreement brings shame to all U.S. citizens who are increasingly seen in Thailand and elsewhere as bullies and hypocrites.



The Page 27 entry on Thailand:

THAILAND
Thailand will be elevated to the Priority Watch List in 2007, reflecting a concern that the past year has been characterized by an overall deterioration in the protection and enforcement of IPR in Thailand. The United States appreciates that many Thai law enforcement officials continue to work, amid challenging circumstances, to conduct actions against infringing activity. However, these efforts appear not to have had a measurable effect on piracy and counterfeiting rates, which remain unacceptably high. The weak nature of Thailand’s legislation governing optical disc media constitutes a particular challenge in addressing the large scale of pirated disc production. Book piracy, cable and signal theft, and entertainment and business software piracy have likewise not been addressed in a meaningful way. Production and distribution of infringing copies of trademarked products, such as apparel and footwear, also remain widespread. With respect to all of these areas, insufficiently deterrent legal penalties contribute to ongoing infringement problems. In addition to these longstanding concerns with deficient IPR protection in Thailand, in late 2006 and early 2007, there were further indications of a weakening of respect for patents, as the Thai Government announced decisions to issue compulsory licenses for several patented pharmaceutical products. While the United States acknowledges a country’s ability to issue such licenses in accordance with WTO rules, the lack of transparency and due process exhibited in Thailand represents a serious concern. These actions have compounded previously expressed concerns such as delay in the granting of patents and weak protection against unfair commercial use for data generated to obtain marketing approval.