Tuesday, July 13, 2004


Preemptive patent infringement

The AIDS conference that just ended in Bangkok, Thailand, is not showing a picture of progress against the disease.
Since the last AIDS conference in Barcelona in 2002, the number of people being treated ... has doubled in the developing world to 440,000. At the same time, 6 million people died from the virus and 10 million people became infected....

"By these measures of human life, the ones that really matter, we have failed. And we have failed miserably to do enough in the precious time that has passed since Barcelona," said Jim Kim, WHO's AIDS director.

There are now an estimated 38 million infections. So why aren’t these people being treated? Money, Silly.

And what was our Great Leader doing about it? Lying, as usual. In his State of the Union message of January 2003 he pledged $15 billion over the next 5 years to fight AIDS, then paused to smirk. The reason he was smirking was that he knew he’d get the political credit for such a generous gift, while the American public would hardly know or care if he followed through.

A year ago, according to the Financial Times,

The culprit for this shortfall [in AIDS-prevention funding] is not Congressional budget-cutting but the president's failure even to ask for the amounts needed to fulfil his pledge. His 2003 budget requested only $1.9bn - an increase of just $450m on what was spent in 2002 and a third less than the $3bn a year implied by the State of the Union promise.

Of course, many drugs now exist for AIDS treatment, but the pharmaceutical industry is no more inclined to lower its prices to fight AIDS than it is to lower its prices to fight illnesses of the elderly here at home. The industry does, after all, hold exclusive patents. And if there is one area of international law for which the U.S. shows boundless respect, it’s international patent protection.

So it was not a happy day back in November 2001 when the World Trade Organization (WTO) agreed to what I like to think of as "preemptive patent infringement."1

The deal that was struck during the World Trade Organisation's (WTO) ministerial meeting in Doha, Qatar, enables countries ravaged by diseases like AIDS, malaria and tuberculosis to side-step the rigid rules that had been laid down by the WTO on pharmaceutical patents.

It also affirms that when developing countries pursue this option -- of accessing cheaper generic drugs than the pricey versions marketed by the drug industry giants who have the patents for these medicines -- they will not face threats from the West, such as trade sanctions.

So the issue seemed to have been laid to rest in a sensible way.2 But a deal with the Bush administration is never what it seems. No.

Bush & Co. is making a move that parallels its efforts to escape war crime prosecutions—by forcing second- and third-world countries to sign bilateral agreements that exempt it from its international obligations.

France on Tuesday accused the United States of pressuring developing countries to give up their right to make cheap generic HIV drugs in return for free-trade agreements - with President Jacques Chirac calling the tactic "tantamount to blackmail."
World Trade Organization rules give developing countries the flexibility to ignore foreign patents and produce copies of expensive drugs in times of health crises. All WTO members including the United States have signed an agreement to respect that clause.

But there is nothing to prevent a country from imposing patent restrictions in a bilateral trade agreement, such as one Washington is negotiating with Thailand. [emphasis mine]

And what is the real Bush administration solution to the AIDS problem in Africa? Nothing less than the restoration of “blood purity.”


1 You would think that if the United States can "preemptively" invade a country to protect its own citizens on the basis that the other country might have weapons of mass destruction, it would be all right for other countries to copy drugs that would save their citizens from certain death. That was not the U.S. position. [back]

2 You may peruse the statements of the U.S. trade representatives here. [back]

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