corrected

January 22, 2000

Thomas M. Rosshirt
Foreign Policy Spokeman for the Vice President
The White House
Washington, DC 20500

Dear Tom:

I am writing to express my astonishment regarding the US government January 19 communication with the Government of Thailand in the dispute over the issuance of a compulsory license for patents held by Bristol-Myers Squibb for the manufacturing of ddI, an important HIV/AIDS drugs.

This is the way it seems to me:

1. On June 25, 1999, in a letter to the US Congressional Black Caucus, the Vice President signals a change in US policy during on the issue of compulsory licensing of HIV/AIDS drugs in devoting countries.
2. November 25, 1999, an official from the Thailand Ministry of Health tells hundreds of public health groups in a meeting in Amsterdam that its government will not issue a compulsory license for ddI or other HIV/AIDS drugs, due to US trade pressures.
3. On December 1, 1999, in the middle of huge protests at the WTO, President Clinton announces that US trade policy will no longer be a barrier to access to essential medicines.
4. On January 10, 2000, the Vice President appears at the UN Security Council to discuss the global HIV/AIDS crisis, and mentions the change in US trade policy. The Vice President receives enormous positive press coverage for this announcement.
5. On January 12, 2000, Act Up, Doctors Without Borders, the Consumer Project on Technology, Public Citizen and other NGOs meet with USTR, US PTO, and DHHS to discuss public health trade disputes. Doctors without Borders (aka MSF) and all of the other NGOS ask USTR to send a clear signal to Thailand that the US government has changed its trade policy, and that Thailand will face no pressure from the US government if it issues a compulsory license for ddI. USTR is told that the NGO groups want the US government to send the Thai government a letter outlining the new policy, and they also ask for a copy of the letter, which they say they will use in other country disputes as evidence that US policy has changed. NGOs leave the meeting believing the US government will do this.

   The ddI case is considered a very clear cut case. ddI was invented on a government grant, and the US government obtained the patent for using ddI on HIV/AIDS. In Thailand Bristol-Myers Squibb is using two process or formation patents to block generic production, including one that includes claims already rejected by the US Patent and Trademark Office. Thailand has the infrastructure to treat HIV/AIDS patents and about one in 60 Thailand citizens are HIV positive. There have been Thailand protests for the ddI compulsory license since fall of 1998.

6. On January 17, 2000, the Thai government announces it has rejected the ddI compulsory license, telling protesters that the rejection is based upon US trade pressures.
7. On January 19, 2000, the US government presents the Thai government with an undated, untitled and unsigned letter, on plain paper. The document includes 7 unnumbered talking points. According to the document, "The USG has generally viewed compulsory licenses as being undesirable because they may undermine intellectual property rights." Nowhere in the document does the US government ever say it would support a Thai decision to issue a compulsory license for ddI. The talking points also say that if the Thai government still wants to issue a compulsory license, it must comply with several WTO TRIPS conditions. The US government letter then goes on to quote only those sections of Article 31 of the TRIPS that emphasize patent owner rights, and omits the sections of Article 31 that emphasize user or government rights. For example, there is not mention at all of the provisions in Article 31 for government or non-commercial public use, even though the Thai compulsory license is for a public sector agency.

In my opinion, the January 19, 2000 communication to the Thai government does not represent any change in US policy, and it difficult to see how it can be read as anything other than continued trade pressure against the Thai on the ddI license.

If the US government wants to send a clear signal to the Thai regarding the ddI compulsory license, it can surely do so. If it wants to send a clear signal to the whole world, it can clearly do so. That fact that this not happening is causing me to wonder if President Clinton and Vice President Gore are being straight with the American public regarding US foreign policy.

I would like to hear from the Administration as to what official US policy is on the issue of the Thai government issuing a compulsory license for ddI, and I would like this on official US government letterhead, with someone's name attached.

Thank you.

Sincerely,

James Love Director
Consumer Project on Technology

http://www.cptech.org/ip/health