[Nettime-bold] [love@cptech.org: Comment on Reporting in Brazil compulsory licensing case]

[t byfield <tbyfield@panix.com>]

----- Forwarded

Subject: [Ip-health] Comment on Reporting in Brazil compulsory licensing
case
Date: Fri, 24 Aug 2001 00:46:02 -0700 (PDT)
From: James Love <jamie4theroad@yahoo.com>
Reply-To: love@cptech.org
To: ip-health@lists.essential.org, pharm-policy@lists.essential.org

I am in Zimbabwe this morning, having spent several days talking to
African trade and health officials about public health aspects of
intellectual property and trade rules.  While it was of course dramatic
to read the headlines of the Brazil statements on the issuance of a
compulsory license for nelfinavir, I was appalled by some aspects of
the reporting (and headline writing), particularly when compared to
reporting on compulsory licenses in the North.  

On August 15, 2001, the New York Times reported matter of factly that
the US Federal Trade Commission was launching an investigation to
determine if it should issue compulsory licenses on the Unocal patents
on anti-smog devices, in response to a request from ExxonMobile. 
(http://www.nytimes.com/2001/08/15/business/15GAS.html)  The next day,
on August 16, 2001, the United States Department of Justice's Antitrust
Division issued a press release
http://www.usdoj.gov/atr/public/press_releases/2001/8810.htm)
announcing it would require 3D Systems and DTM  Corporation license
their combined portfolio of North American patents for the field of use
for stereolithography or SLS RP Technology.   The compulsory licenses
would be perpetual, assignable, transferable and fully paid-up (zero
royalty).  The US DOJ also required compulsory licenses to all
copyrights necessary for a new entrant to enter the market in North
America.  

The US government decision to issue compulsory licenses in the 3D/DTM
case was barely noted in the US or global news media, and indeed, it
was not particularly novel, as the US government has issued dozens of
such licenses in recent years on technologies as diverse as tow truck
parts, computer technologies, software, corn germplasm, hemophilia gene
rights, dicyclomine tablets, and many others.   

When the Brazil government announced it would issue a compulsory
license to the government to produce an affordable version of
nelfinavir, a protease inhibitor that currently represents 28 percent
of the country's antiretroviral drug budget, the global press issued
headlines all over the world claiming the Brazil government would
"break," "violate" or "ignore" the patents on the product.  No mention
was made of the fact that the US Department of Justice had issued a
compulsory license on August 16, a few days earlier, or that on July 3,
the European Union had issued a compulsory license in Germany for an
IMS database on pharmaceutical sales, or that in the case of the
nelfinavir patents, the Brazil government would pay royalties (unlike
the US compulsory licenses on the 3D/DTM patents). 

I think this is bad reporting or editing (often the headlines were the
worst), and has the predictable effect of demonizing the actions of
governments in developing countries who if anything should be
criticized for not acting sooner on compulsory licensing.  Northern
governments surely would not have waited this long to act.  Such
reporting harms the poor, because it acts as a deterrent for more
compulsory licensing, as developing countries are obsessed with
attracting investors.  Reporting that incorrectly presents developing
countries as acting outside of recognized global norms on the
protection of intellectual property are widely perceived by developing
countries as harmful.  Governments in developing countries, and
particular trade and industry officials, the people most likely to be
decision makers on patent issues, do not feel that they are in a strong
position to be portrayed as disregarding property rights.  It would
have been much more accurate, and certainly more beneficial to the
interests of the millions of persons who are infected with HIV, if the
reports had noted that the Brazil government was following procedures
that have been employed by the United States and Europe, and that the
Brazil government would compensate the patent owner, consistent with
the standards set out in the WTO agreement on intellectual property
rights.

  James Love <love@cptech.org>

(Note on the development of nelfinavir.  The patents on the drug were
filed on Feb 2, 1994.  The US FDA marketing application was filed
December 26, 1996, and approved on March 14, 1998, four years and a
month after the patent was filed.  The FDA marketing approval was based
upon two Agouron sponsored clinical trials involving 605 patients.)  As
of 2 years ago, the US government had sponsored 40 clinical trials
using nelfirnavir.)

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