By:Reginald Dale The International Herald Tribune
WASHINGTON, Over the past few days, the United States has been accused of blatant hypocrisy by numerous developing countries and their allies in international aid organizations. It is easy to understand why.
For years now, Washington has been the strongest defender of the patent rights of multinational companies, as developing countries have increasingly challenged them -- most recently to procure cheaper medicines to combat AIDS. Washington has put heavy pressure on countries like Thailand and Brazil to end what it saw as infringements of patent rights, and it has led the effort by industrial countries to protect intellectual property rights in international trade negotiations. But what happened last week? The United States -- and Canada -- started acting like developing nations. Tommy Thompson, the U.S. secretary for health and human services, threatened to override the patent for the anti-anthrax drug Cipro, held by Bayer AG, unless the company slashed its prices.
"What the United States is doing is precisely what we do," said a senior Brazilian official. And the result was remarkably similar. As developing countries such as South Africa have done, the United States won a big price cut without needing to break Bayer's patent. After a messy political tangle, the Canadian government also finished by acknowledging Bayer's rights.
If the United States had actually overridden the patent, particularly through an act of Congress as some rashly proposed, it would have seriously undermined its own, usually successful, policy of dissuading other countries from authorizing unpatented generic medicines. Even so, the episode is embarrassing for Washington, coming as it does just days before the World Trade Organization ministerial meeting in Qatar, at which patents and intellectual property will be a hot issue.
The United States and other developed countries have been fighting hard to prevent the meeting from adopting a declaration proposed by Brazil, India, and African and other developing countries that would effectively invalidate patents for any product that could be linked to public health.
The United States was perfectly within its rights to act as it did. WTO rules waive many of the patent provisions in a national emergency.
Nobody is suggesting, for example, that countries should be barred from getting the medicines they need to combat pandemics like malaria, typhoid, tuberculosis and AIDS.
The definition of an emergency is somewhat vague, but it is hard to argue that the first bioterror attack on a nation is not an emergency. It is, however, the first time that a developed country has faced such a medical crisis under WTO rules. The United States actually foresaw such an eventuality when the rules were negotiated in Geneva in the early 1990s. Washington inserted terminology to preserve the U.S. legal practice of "government use," under which, for example, it seized all rights to antibiotics, just as they were being developed, in World War II.
These waiver provisions are generous enough to allow developing countries considerable leeway in seeking cheaper drugs to fight AIDS and other scourges. What the developing countries now want is the same freedom to disregard patents in any health-related area.
It is no surprise that two of the developing countries leading the charge are among the biggest producers of generic drugs, India and Brazil. India currently recognizes no patents and produces vast quantities of generic drugs at rock-bottom prices.
It is easy to sympathize with those who argue that the cheapest possible medicines must be made available to AIDS victims in developing countries. And that is what the United States will be offering in Doha. Instead of a blanket waiver for "any public health measure," the developed countries suggest that all countries have "access to needed medicines at affordable prices," which is already a concession.
In this dispute, both sides are right. If there were no patents, there would be no research to find new medicines, which can cost hundreds of millions of dollars over many years. The aim must obviously be to strike a balance between the two competing demands, which is what the United States is trying to achieve. Unfortunately, however, its public relations are in disarray. The big pharmaceutical companies are thoroughly disliked, in America as elsewhere, and Washington's recent actions have undermined its moral authority as the world's chief guardian of patent rights. E-mail address: Thinkahead@iht.com:
