Senator Joe Lieberman and four democrats (Menendez D-NJ, Lautenberg D-NJ, Carper D-Del, Feinsten D-CA) in the Senate have asked U.S. Trade Representative Susan Schwab to rough up Thailand over its plans to issue compulsory licenses on drug patents for diseases other than AIDS, TB or malaria.
[The WTO's FAQ on the use of compulsory licenses is on the web here.]
In their March 20, 2007 letter, the five Senators described the Thai government's proposals as "a government policy to expropriate patents on all manner of innovative medicines not used to address urgent public health needs." Drafted by Lieberman, the letter focuses most importantly on this issue: Should a developing country be able to use compulsory licenses to promote access to medicines for the same diseases that are common in the United States, such as cancer, heart disease or diabetes? Or should they only use such measures to deal with AIDS, a disease that has drawn considerable high profile attention among politicians and celebrities.
There is no medical reason why Thailand should only use compulsory licenses to obtain inexpensive generics for the treatment of AIDS. People in Thailand suffer from all sorts of diseases, including everything we face here, and the prices charged by big drug companies are far beyond that which the average wage earner in Thailand can afford. This is the reality on the ground in almost every developing country, where drug companies typically target wealthy elites when setting prices.
In order to give their letter an appearance of the moral high ground, the Senators offer what is part of the big lie strategy put forth by pharmaceutical industry PR agents. The Senators "do not believe that WTO members intended those rules to be used to allow compulsory licenses on any medicine whatsoever as a matter of standard government policy. . . " In fact, as is well known by Lieberman's own staff, the WTO rules on patents and compulsory licenses clearly allow precisely the measures that Thailand has undertaken. There is no limit on the scope of diseases in the WTO TRIPS agreement, and indeed, no requirement that compulsory licenses even be limited to patents on medicines.
The day after Thailand was criticized by these Senators, Italy issued compulsory licenses for patents on a drug used to treat prostate problems. Since June of 2006, the U.S. government has issued compulsory licenses on patents at least five times, including licenses on patents for software, Direct TV's set-top box, a Toyota transmission, a J&J medical device, and computer memory chips. None of these were mentioned in the Senator's letter, which says that Thailand's actions "raise grave concerns about the investment climate in Thailand." [These and more examples here]
Meanwhile, Tommy Thompson, the former DHHS Secretary and current Republican candidate for President, has also criticized the Thailand government, but on March 23 he also offered this good advice:
"In this increasingly complex environment, governments also have a duty to talk and exercise diplomacy to address not only this symptom, but to put into place a framework that considers the larger global public health need -- the balancing act between innovation and access."
Tommy Thompson's comment points to a positive way forward. The World Health Organization has created a new "Intergovernmental Working Group" or IGWG, to look at precisely these issues -- how does one reconcile both innovation and access, when most of the world's population earns so little? The Congress should look at the IGWG process and come up with something more appealing than telling most of the world they deserve second-class access to medicines for diseases it's not currently fashionable to care about.