SIGN-ON LETTER TO USTR SUPPORTS THAILAND'S COMPULSORY LICENSE FOR EFAVIRENZ
The following letter was sent to Honorable Condoleezza Rice, Secretary of State, and Ambassador
Susan Schwab, United States Trade Representative, asking that the United State cease any opposition or interference with Thailand's
efforts to use legal WTO flexibilities to buy generic AIDS medicines. The letter was sent on Wed, December 20,
The letter was coordinated by Consumers Project for Technology, email@example.com. CPATH signed this letter.
Honorable Condoleezza Rice, Secretary of State Ambassador Susan Schwab,
United States Trade Representative
Dear Secretary Rice and Ambassador Schwab:
We are writing to express our
concern that the United States Department of State and the United States Trade Representative and have intervened in the decision
by the government of Thailand to issue a compulsory license on patents for the AIDS drug efavirenz, and to explain why the
US government should refrain from such actions.
The touring representatives included AIDS Access Foundation leader
and activist, Sangsiri Teemanka; Vice President of the Thai Network of People Living with HIV/AIDS (TNP+),
Boripat Donmon; and associate professor at the Faculty of Pharmaceutical Sciences at Chulalongkorn University,
Bangkok, Jiraporn Limpananont.Their primary purpose in coming to the
United States was to initiate dialogue between Thai and U.S. citizens concerning the pending Thai-U.S. Free Trade Agreement
(FTA).They will especially address predicted effects of the Thai-U.S. FTA on
International Property Rights (IPRs) and therefore, access to medication in Thailand.
addition to Sangsiri Teemanka’s current work with TNP+ and FTA Watch, she is part of the AIDS ACCESS
Foundation (AAF), with whom she has designed and implemented training projects such as sex education for secondary school
students, opportunistic infections and antiretroviral therapy, and counseling and behavior change.She has also worked on successful campaigns to incorporate anti-retroviral medication (ARV) into the Thai
public health system, the Bristol-Meyer-Squibb (BMS) court case to revoke the patent on ddl in Thailand, and recently, campaigns
to oppose the application by Glaxo-Smith-Kline (GSK) for a patent on Combid in Thailand.At the 14th International AIDS conference (IAC) in Bangkok, Teemanka played a large role in initiating the
concept of the global village, now a permanent fixture of the IAC.
Limpananont has been an integral member and academic advisor to the ‘Drug Study Group,’ a network of
university academics who fights to improve and protect access to medications and the Health and Development Foundation, who
worked with others to successfully campaign against the GSK patent application on “Combid” in Thailand.The Drug Study Group was also part of the ultimately successful, 3-year long lawsuit filed against BMS,
which resulted in the revocation of the BMS ddl patent.Limpananont expresses
her concern for access to medication through her numerous publications about TRIPS, drug patents, the Thai health system,
and implications of a Thai-U.S. FTA.She is also a member of FTA Watch, a coalition
formed under concern for the non-transparent manner in which FTA negotiations were being conducted by the Thai government.
Donmon has worked for PLHA since 1999.He was a committee member of
the community advisory board on vaccine trials in Thailand from 2004-2005 and participated in lobbying for the creation of
a national Thai health security scheme by leading a campaign to gather 50,000 signatures.He has been living with HIV for 13 years, but campaigns with other parties unduly affected by the Thai-U.S. FTA such
as farmers.He participated in protests during FTA negotiation rounds in Thailand,
and his travels to Hong Kong with agricultural workers and representatives of slum networks to protest the 2005 WTO meeting
inspired him to his present work, ensuring access to second line medication in Thailand.
Thailand: FTAs and Access to Medicines
Photos from Special Internal
Medicine Seminar: Friday 10/27, Moffitt Hospital, University of California,
San Francisco, California: "International Trade and its Effect
on Global HIV Treatment"
A Panel Discussion Featuring:
* Vivek Jain, M.D.Chief Resident,
Internal Medicine, in conversation with
Ellen R. Shaffer, PhD MPH,
CPATH (Center for Policy Analysis on Trade and Health)
*Kyra Busch and Brighid O'Keane, Engage
* International visitors
from Thailand concerned with the predicted effects of the pending Thai-U.S. FTA on International
Property Rights (IPRs) and access to medicines in Thailand:
Jiraporn Limpananont, associate professor at the Faculty of Pharmaceutical Sciences at ChulalongkornUniversity, Bangkok
Sangsiri Teemanka, AIDS Access Foundation leader and activist
Boripat Donmon, Vice President of the Thai Network of People Living with HIV/AIDS (TNP+)
We explored the history behind
US-International trade agreements, how they impact the buying and selling of medications (especially generic drugs), and the
current challenges that legislators and international health advocates are facing.
Boripat Donmon (l) addresses access to AIDS treatment, Kyra Busch (r)
UCSF Audience Engages with Thai Access Activists
(l-r) Vivek Jain, Brighid O'Keane, Boripat Donmon, Sangsiri Teemanka, Kyra Busch,
Jiraporn Limpananont, Ellen Shaffer, Joe Brenner
Responding to activists, Thailand announced in November that it will issue a 5 year compulsory licence for Merck's
antiretroviral drug, Efavirenz. The following 4 postings document the decision, a statement by Brook Baker for
Health GAP on why the CL is important, and CP Tech's letter to the USTR opposing US pressure, and delineating the
legal basis for the Thai action.
1. Announcement of Compulsory License Use in Thailand
From: "tui" <firstname.lastname@example.org> Date: Wed,
29 Nov 2006 15:40:39 +0700
Below, is the press release of Thai People Living With HIV/AIDS after we marched to the
Ministry of Public Health and urged them to use CL for ARV:
Bangkok 29 Nov. 2006 : The Thai Ministry of
Public Health has bowed to pressure from HIV/AIDS lobbyists and NGOs and has agreed to issue a 5 year compulsory licence
(CL) for the anti retro viral drug, Efavirenz commonly used in first line treatment for HIV. US Pharmaceutical company,
Merck, currently holds a patent on Efavirenz in Thailand making this medication expensive and prohibiting the Government
Pharmaceutical Organisation (GPO) from producing a generic version. This decision from the new military regime has been
made despite years of unsuccessfully lobbying past governments.
This announcement comes after tireless work and lobbying
from the Thai Network of People Living with HIV/AIDS (TNP+) and other HIV/AIDS activists to advocate for the government
to utilise the flexibilities granted them in the World Trade Organisation�s TRIPS agreement. The National Health
Security Office has also formed a committee dedicated to investigating the possibility of issuing a CL. The CL will
allow the Thai government to import a generic version of Efavirenz from abroad until the GPO is able to produce its
own generic version saving the Public Health System millions of baht a year.
This ground breaking decision sets
an important precedent for the issuing of CL for other desperately needed but costly medication for other chronic diseases
such as kidney disease and cancer.
================================ Sangsiri Teemanka Advocacy Team, AIDS ACCESS
Foundation 48/282 Center Place Ramkamheang Rd. Sapansoong Bangkok 10240 Tel : 66 2 372 2113 -4 Fax : 66 2 3722116 ___________________________________________________________ 2.
MSF Interview with Dr. Suwit Wibulpolprasert Senior Advisor on Health Economics, Ministry of Public Health, Thailand 30
3. Price-Cut Handcuffs:
Thailand must stand up to Merck and implement its compulsory license on efavirenz. Brook K. Baker, Health GAP From:
B.Baker@neu.edu December 3, 2006
On November 29, the Thailand Department of Disease Control, Ministry of Health,
announced that it had issued a compulsory license for Efavirenz that would allow immediate importation at half the cost
from India and subsequent local production by GPO. The compulsory license would be effective through December
31, 2011 and would allow treatment of up to 200,000 Thais. A modest royalty of .5% would be payable to the patent holder,
Merck. This license is the result of years of advocacy by Thai activists, including TNP+, and other NGOs trying to
convince Thai officials to secure more affordable and diverse sources of life-saving medicines.
Within two days,
Merck leapt to the defense of its patent by offering to discuss discount prices or voluntary licenses with the Government Pharmaceuticals
Organization. In doing so, Merck complained that it had received no prior warning's of the government's intention
and further claimed that there had "been no process in terms of Thai law or international law, where the company has
been consulted or where the company has been asked what they [sic] could do to assist."
To the contrary, neither
Thai law nor international law requires prior negotiation for a voluntary license or for price discounts before issuing
a compulsory license for government, non-commercial use (commonly called government or crown use) or for a health emergency
such as that presented by HIV/AIDS. Article 31 of the TRIPS Agreement specifically authorizes government use without
negotiation, and the 2001 Doha Declaration on the TRIPS Agreement and Public Health confirms this procedure. There's
no way that Merck officials don't understand the legality of Thailand's stated intentions, but that doesn't stop Merck's
disinformation team from suggesting that Merck has been treated unfairly and perhaps even illegally.
The U.S. and
its drug companies have a long history of trying to prevent issuance of compulsory licenses by developing countries.
The infamous 1998-2001 Big Pharma lawsuit in South Africa, the 2001 U.S. WTO complaint against Brazil, and routine drug
company and Congressional threats against Brazil when it has threatened to issue compulsory licenses are only the tip of
the trade-threats iceberg. The US Ambassador had written to the Thai government in 1999 that "the Thai government
certainly don't want to be the cause of a trade dispute, which is what we have always told them would happen if compulsary
[sick] licensing clause should be invoked." The Ambassador continued that this would set "a worrisome precedent for
the rest of the drug industry."
Well, the U.S. government "always" resisted compulsory licenses, pre-Doha, and
it continues to do so now with backroom pressure and threats including those routinely presented in its Section 301 Trade
Reports where it has in the past complained about Brazil's threatened issuance of compulsory licenses.
actually represents a cautionary tale because it has cried wolf three times by threatening to issue compulsory licenses
for key, second-line antiretrovirals. However, each time, the government has inexplicably backed down and accepted
temporary price discounts that were inferior to prices that could have been obtained through local production or importation
from India. Rather than set a leading-developing-country example that could catalyze more widespread compulsory licensing
throughout the Global South, Brazil set a negative example of caving into U.S. pressure. It is no secret to Merck
that its supply chain in Thailand has been erratic, threatening patient safety, nor that it has been charging prices nearly
double those available from WHO-prequalified generic competitors. If Merck could figure out how to file a lawsuit, it would,
like its bedfellows Pfizer and Novartis have done in the Philippines and in India (challenging government action allowing
early registration and strict definitions of pharmaceutical patentability respectively). Since Merck can't find
even minimally plausible grounds for a lawsuit, it will instead seek to mislead the public that it is the wronged party
and then try to get its USTR and Congressional bullyboys to apply pressure on the post-coup Thai government. Hopefully
even a military government will see that the future health of tens of thousands of PWAs in Thailand is dependent on competitive
sources of low-cost generic medicines of assured quality, whether imported or produced locally.
Thailand compulsory license: Letter to Ambassador Susan C. Schwab (USTR)
From: James Love <email@example.com> To: Ip-health <firstname.lastname@example.org> Subject:
[Ip-health] Thailand compulsory license: Letter to Ambassador Susan C. Schwab (USTR) Date: Wed, 13 Dec 2006 07:10:56
* Karan K. Bhatia, the Deputy U.S. Trade Representative, has recently pressured the Thailand government
over the compulsory license issued on patents covering the AIDS drug efavirenz.
* This follows a long history of
US pressure on Thailand concerning patents and medicines. See, for example: Susannah Markandya, "Timeline
of Trade Disputes involving Thailand and access to medicines," July 23, 2001. http://www.cptech.org/ip/health/c/thailand/ thailand.html, Tido von Schoen-Angerer, Jiraporn Limpananont, "US pressure on Thailand," The Lancet, Vol 358, 20 July,
2001, Dylan C. Williams, "A Morality Tale on AIDS,"World Health: A Lethal Dose of U.S. Politics , The Asia Times
June 19, 2006 (Entered into the Congressional Record by Congressman McDermott, http://www.house.gov/ mcdermott/sp060619.shtml).
This is a letter sent by CPTech yesterday to Ambassador Susan C. Schwab of the USTR.
We discuss the nature of the dispute between the USTR and the government of Thailand, clarify the trade rules regarding
prior negotiation when compulsory licenses are for government uses, detail recent compulsory licenses in the United States,
and outline a more productive way to frame the global issue of who pays for R&D on new medicines. Jamie
Consumer Project on Technology 1621 Connecticut Avenue, NW, Suite 500, Washington, DC 20009
Ambassador Susan C. Schwab United States Trade Representative 600 17th Street, N.W. Washington, DC 20508 United
States of America
Dear Ambassador Schwab:
We ask that the United States government not interfere with the Thai government
decision to issue a government-use license on patents covering the AIDS drug efavirenz.
There is a concern that
the USTR may have suggested to the Thai government that the WTO TRIPS agreement requires prior negotiations with patent
owners before a compulsory license is issued. If so, the assertion was wrong. Article 31 of the TRIPS does not require
prior negotiation before authorizing non-voluntary use of a patent, in any of the following cases:
1. a national emergency or other circumstances of extreme urgency, 2. cases of public non-commercial
use, or 3. where such use is permitted to remedy a practice determined after judicial or administrative
process to be anti-competitive
In this particular case, the non-voluntary use was for a government owned entity
that will provide medicines for a national program to treat AIDS. Under the WTO rules, there is no obligation for prior negotiation
with patent owners in such cases.
There is also no requirement for prior negotiation with patent owners under the
various US bilateral (and regional) trade agreements the United States has recently negotiated. The reason for this is obvious.
In the TRIPS and the bilateral or regional trade agreements, these sections on prior negotiation were written to accommodate
US law and practice. Our own government is not required to negotiate with patent owners or copyright owners before authorizing
use by or for the government.
The main United States statute regarding use of a patent in such circumstances
is 28 USC 1498. There is no obligation for prior negotiation or prior notice with the patent owner under 28 USC 1498, when
a non-voluntary authorization is for the government./1 This includes uses by third parties:
For the purposes of
this section, the use or manufacture of an invention described in and covered by a patent of the United States by a
contractor, a subcontractor, or any person, firm, or corporation for the Government and with the authorization or consent
of the Government, shall be construed as use or manufacture for the United States.
As trade officials charged
with promoting US norms for intellectual property protection, it is useful to review what those norms actually are.
The United State has a number of mechanisms to issue compulsory licenses on patents. These include, in addition to 28 USC
1498, the following:
* Mandatory patent licenses under Section 308 of the Clean Air Act (see:
http://www.epa.gov/docs/fedrgstr/EPA-AIR/1994/December/ Day-30/pr-251.html). This statute is unfortunately not consistent with
the provisions of the US FTA agreements negotiated with Jordan (2000), Singapore (2003), and Australia (2004).
* Compulsory licenses for patents "affected with the public interest" that are of primary importance in the production
or utilization of special nuclear material or atomic energy, for non- military purposes (See 42 USC 2183). This statute
is unfortunately not consistent with the provisions of the US FTA agreements negotiated with Jordan (2000), Singapore
(2003), and Australia (2004).
* The Bayh-Dole Act march-in rights for patents on inventions conceived
with federal funding,
* Remedies to anticompetitive practices.
licenses issued under the procedures set out by the US Supreme Court in the recent eBay decision. This approach is arguably
not consistent with the provisions of the US FTA agreements negotiated with Jordan (2000), Singapore (2003), and Australia
The following are a just few recent examples of the use of compulsory licenses by the United States:
* In 2001, DHHS Secretary Tommy Thompson used the threat to use 28 USC 1498 to authorize imports of generic ciprofloxacin,
for stockpiles against a possible anthrax attack.
* In 2001, the Department of Health and Human
Services used its authority to exercise March-In rights for patents on stem cell lines held by the Wisconsin Alumni
Foundation as leverage to secure an open license on those patents./2
* In 2002, the US FTC ordered
a compulsory cross-license of the Immunex tumor necrosis factor ("TNF") patent, to Serono, including the "freedom to
practice in the research, development, manufacture, use, import, export, distribution and sale of TNFbp-I Products and certain
glycosylated and nonglycosylated fragments, derivatives and analogs thereof in the United States."
* In 2002, the US Department of Justice required Microsoft to license on reasonable and non-discriminatory terms intellectual property
rights in a number of different protocols needed to create products that were interoperable with Microsoft Windows./3
* In 2005, the FTC ordered a compulsory license of Guidant�s intellectual property surrounding the RX delivery system
for Drug- Eluting Stents.
* In 2005, the US Department of Justice cited its right to use patents
in 28 USC 1498 when it opposed injunctive relief for infringement of the patents relating to the Blackberry email services supplied
to both the government and private firms that used the Blackberry device to communicate with the government./4
* In a November 2005 Congressional hearing, DHHS Secretary Michael Levitt testified before the House of Representatives
that he had threatened to override the patents on treatments for Avian Flu if companies had not expanded US production
facilities./5 More recently, the Centers for Disease Control threatened to use US Bayh-Dole "march- in" rights to issue
compulsory licenses on patents on reverse genetics, which are needed to manufacture vaccines for avian flu.
* In June 2006, a court granted Microsoft a compulsory license to use two patents owned by z4 Technologies that relate
to digital rights management systems used by Microsoft for its Windows and MS Office software programs./6
* In July 2006, a court granted DirectTV a compulsory license to use the Finisar patent on integrated receiver decoders
(satellite set top boxes), for a royalty of $1.60 per device./7
* In August 2006, a court granted
Toyota a compulsory license on three Paice patents for hybrid transmissions, for a royalty of $25 per automobile./8
* In September 2006, a court granted Johnson and Johnson a compulsory license to use three of Jan Voda�s patents
on guiding- catheters for performing angioplasty./9
The point of this history lesson is to emphasize a point that
some USTR officials seem to overlook. The flexibilities in the TRIPS agreement are there for good reasons. As evidenced
by the many cases described above, there are many situations where any country will want to limit or create exceptions
to the exclusive rights of a patent.
In the case of efavirenz patents, Thailand is clearly seeking to create a policy
that will strengthen competition among generic suppliers, and enhance it's own capacity to manufacture AIDS medicines.
The benefits of this policy will be more pronounced over time, as competition, economies of scale and learning by doing
lead to more efficient production by generic producers.
Looking more closely at Thailand, one can see why this is
so important. The United States has a much higher national income than Thailand, but a much lower rate of HIV infection.
When compared to Thailand, the US has thirty-five times the income per HIV patient./10
United States Thailand
Population (2005) 297 million
64 Million GNI (2005 ) $13 trillion $177 billion GNI
per capita (2005)
$ 43,740 $ 2,750 HIV+ population 1,200,000
580,000 Rate of HIV infection (per 100,000) 404
906 GNI per HIV+ person $10.8 million $ .3 million
Because of US trade policies, including the 1993
agreement negotiated by former USTR Mickey Kantor,/11 Thailand has been slow to provide treatment to its very large
population of AIDS patients. Until November 2006, Thailand had not used the compulsory licensing provisions that are
permitted in the TRIPS. Thailand started its treatment program by relying extensively on a handful of older AIDS drugs
that were off patent in Thailand. These products are not the best that modern science offers. Many Thai AIDS patients suffer
from the predictable side effects associated with the older medicines. In any case, over time, AIDS patients everywhere
develop resistance, and cannot be treated without access to new medicines.
Thailand will need sustainable access
to second line AIDS drugs at affordable prices. If Thailand does not issue compulsory licenses on the patents for these
medicines, it will have to limit access to treatment. This will mean much suffering and death, an outcome that is avoidable.
United States should not pressure Thailand on the issue of issuing compulsory licenses on patents for AIDS drugs. It should accept
the fact that Thailand, like all WTO members, has an obligation to take measures to "promote access to medicines for all."/12
United States and other high-income countries are increasingly realizing that they too have to consider using compulsory
licenses on patents for medical inventions. For example, Canada and several European countries have threatened to use
compulsory licenses on the Myriad patents for tests used to identify the risks of breast cancer -- tests that are not
widely available in the United States, because of the high price./13 It is increasingly difficult for high-income countries
to afford the prices for new treatments for cancer or other severe illnesses. With our own aging population, we cannot
have a sustainable program of access to the latest medical discoveries, without having the ability to at least threaten
to override the exclusive rights of a patent.
The tough USTR positions on patents, pharmaceutical test data and drug
prices in trade negotiations are an attempt to deal with the global problem of funding medical R&D. They focus entirely
on measures that raise drug prices. In our opinion, this is a mistake. We believe the United States would be better
off embracing a new approach, one that focuses on sharing the costs of medical R&D -- not just through high drug
prices, but through any mechanism that supports relevant R&D efforts. For example, we would benefit if our trading
partners would engage with the NIH to share the costs of medical R&D for global health problems, provide sustainable
funding for the many new non-profit product development ventures, or if they would fund new mechanisms to stimulate
R&D, such as advanced marketing commitments for new vaccines, or "prize funds" that reward medical innovations that
improve health outcomes./14
Last week the World Health Organization (WHO) convened the first meeting of it's new
Intergovernmental Working Group on Intellectual Property Rights, Innovation and Public Health. At this first meeting, thirty-three
countries, including Thailand, supported work on a new treaty or agreement to provide sustainable sources of R&D for
global health priority projects. It is in the interest of the United States that other countries, rich and poor, do
more to pay the costs of such research. But for many of our trading partners, an agreement to support medical R&D
would be more appropriate and acceptable than a trade framework that only seeks to raise drug prices.
As the new
head of USTR, you have the opportunity to reframe our trade policy so that it provides a rational, effective and ethical solution
to the global free rider problem. We need to ensure that everyone contributes fairly to the costs of medical R&D, but
in a framework that ensures people can have access to new inventions.
I would like to meet with you and your staff
to discuss these matters.
Director Consumer Project on Technology
K. Bhatia, Ambassador, Deputy U.S. Trade Representative
Victoria A. Espinel, Assistant U.S. Trade Representative for Intellectual
Barbara Weisel, Assistant U. S. Trade Representative for Southeast Asia-Pacific and Pharmaceutical
Senators Edward Kennedy, Hilary Clinton, Barack Obama, Sherrod Brown, Bernie Sanders, Chuck Schumer, Diane
Feinstein, Barbara Boxer, Trent Lott, Chuck Grassley, Byron Dorgan, Richard Durbin, Ron Wyden, Patrick Leahy
Nancy Pelosi, Representatives Charles Rangel, Henry Waxman, John Dingell, Tom Allen, Janice Schakowsky, Rahm Emanuel, Dan
Burton, Rosa DeLauro, Jo Ann Emerson, Dennis Kucinich, Barbara Lee, Sander Levin, Jim McDermott, Maxine Waters, Peter
Stark, Charles Gonzalez, John Lewis, Xavier Becerra, John Larson, Linda Sanchez, Lloyd Dogget, Howard Berman, Lois Capps,
Joe Crowley, Mark Udall, Betty McCollum, Raul Grijalva, Hilda Solis
Dr. Margaret Chan, Director-General Elect, World
Dr. Howard Zucker, Assistant Director-General, World Health Organization
Dr Suwit Wibulpolprasert,
Senior Advisor on Health Economics, Ministry of Public Health, Thailand
Cecilia Oh, UNDP
TRIPS Article 31.b states "In the case of public non-commercial use, where the government or contractor, without making
a patent search, knows or has demonstrable grounds to know that a valid patent is or will be used by or for the government,
the right holder shall be informed promptly." There is a similar provision in NAFTA. NAFTA Article 1709(10)(b) also
requires that patent owners be notified "promptly," but not before a compulsory license is issued. See also: Executive
Order 12889, Implementation Of The North American Free Trade Agreement, December 28, 1993:
Sec. 6. Government Use
of Patented Technology. (a) Each agency shall, within 30 days from the date this order is issued, modify or adopt procedures
to ensure compliance with Article 1709(10) of the NAFTA regarding notice when patented technology is used by or for the Federal
Government without a license from the owner, except that the requirement of Article 1709(10)(b) regarding reasonable efforts
to obtain advance authorization from the patent owner:
(1) is hereby waived for an invention used or manufactured
by or for the Federal Government, except that the patent owner must be notified whenever the agency or its contractor,
without making a patent search, knows or has demonstrable reasonable grounds to know that an invention described in
and covered by a valid United States patent is or will be used or manufactured without a license; and
(2) is waived
whenever a national emergency or other circumstances of extreme urgency exists, except that the patent owner must be notified as
soon as it is reasonably practicable to do so.
2/ September 5, 2001, "National Institutes of Health and WiCell Research
3/ United States Of America, Plaintiff V. Microsoft Corporation, Defendant. Civil Action
No. 98-1232 (CKK), FINAL JUDGMENT, (November 12, 2002). For a detailed account of work to implement the order, see:
INTERIM JOINT STATUS REPORT ON MICROSOFT'S COMPLIANCE WITH THE FINAL JUDGMENTS, http://www.usdoj.gov/atr/cases/f201300/201386.htm
4/ The United States� Statement Of Interest, November 2005., NTP, INC., Plaintiffs, V. RESEARCH IN MOTION,
LTD., Defendant., Civil Action No. 3:01CV767.
6/ This case was decided under the new US Supreme Court standard for granting injunctions on patents. See eBay
Inc. v. MercExchange, L.L.C., 126 S. Ct. 1837, 1839-1841 (U.S. 2006)).
Assuming that the ability to pay is linear in terms of income, a second line AIDS drug that is sold for $1,000 in Thailand
would be equivalent to a product selling for $70,000 in the United States. With health care budgets rising faster than
incomes, the impact is even worst for the lower income country.
12/ Paragraph four of the 2001 Doha Declaration on TRIPS and Public Health.
13/ The tests are more widely
available in countries that have shipped patient tests to offshore testing labs where patents are not in effect.
Aidan Hollis. An Optional Reward System for Neglected Disease Drugs, 2005; Joseph Stiglitz, Give Prizes not Patents. New
Scientist, September 16, 2006; Thomas Pogge on Online Opinion. "A New Approach to Pharmaceutical Innovations," June
21, 2005; James Love. "Measures to Enhance Access to Medical Technologies, and New Methods of Stimulating Medical R&D."
Paper for the WIPO Open Forum on the draft Substantive Patent Law Treaty (SPLT), March 2006.