[Ip-health] Your question of interpretation

Abbott, Frederick FAbbott at law.fsu.edu
Sat Sep 17 11:51:11 PDT 2011

Dear Jamie,


I appreciate your question regarding how to interpret my comment on
compulsory licensing in the Bloomberg story with respect to the issue of
non-communicable diseases. As you said, the statement is true but, as
presented, could have been said by USTR or Pfizer. I also was not
pleased by the way that particular paragraph was reported, for the
reason you asked the question. But, that is one of the difficulties with
press reporting and editing, with even a good reporter compressing a 30
minute conversation into a few sentences.


In the discussion with the reporter, Jason Gale, who has done some
excellent work on the diabetes epidemic in India, he asked me to
speculate on why the originator industry (supported by USTR) continues
to press so hard on the issue of compulsory licensing, in this case
arguing against application to non-communicable diseases (NCDs). The
paragraph refers to what I portrayed as the standpoint of the originator
industry. I said that from the standpoint of the originator industry
compromises on patents threaten to erode their long-term profitability,
and that compulsory licensing from the standpoint of the originator
industry represents a significant threat. The first sentence of the
paragraph indicates that I am referring to the standpoint of the
industry. The second sentence is not so qualified, but in the discussion
there was no break in that chain of argument. Both the first and second
sentences were intended to identify the motivation behind the industry's
position -- from the industry's standpoint. I was not suggesting, nor do
I suggest, that this position of industry should limit the appropriate
use of compulsory licensing.


In particular, I did not suggest that compulsory licensing is or should
be limited to transmittable diseases. I am categorically opposed to
efforts to reinterpret the Doha Declaration and/or the August 30, 2003
waiver decision to suggest such a limitation. You referred yesterday on
IP-Health to your own Huffington Post contribution regarding negotiation
of the Doha Declaration and the August 30, 2003 waiver decision. You
correctly pointed out that tremendous effort was spent precisely to
avoid limiting the "scope of diseases", and that neither the Doha
Declaration nor the August 30 decision contains a limitation. For those
who do not recall the history, the United States blocked adoption at the
WTO in December 2002 of the Paragraph 6 solution agreed to by all other
Members on grounds -- as stated by the U.S. Ambassador to the WTO --
that it could not accept a solution in which the scope of diseases was
open. USTR, led by Robert Zoellick, thereafter spent six months
attempting to persuade other WTO Members not to accept what became the
August 30, 2003 decision, explicitly making recommendations to avoid a
broad solution (such as by limiting the solution to sub-Saharan Africa).
The United States was unable to persuade other WTO Members, and
ultimately accepted the August 30, 2003 decision without any limitation
on the scope of diseases. There is a similar history in negotiation of
the Doha Declaration, where the US and like-minded group attempted to
limit the scope to pandemics, but was unsuccessful. (I have authored
detailed chronologies and analyses of these negotiations in the American
Journal of International Law <
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=763224> and the
Journal of International Economic Law <
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1493725>, among other
places.) Neither the Doha Declaration nor the August 30 decision limits
in any way the diseases as to which compulsory licensing may be used.


The debate currently being had regarding NCDs is saddening because it
reflects a continuing perspective on the part of USTR, the European
Commission and the originator industry that a distinction should be
drawn between the forms of disease that are killing large numbers of
individuals, and that while it may not be acceptable to allow people to
die from HIV/AIDS, it is acceptable if they die from cancer, diabetes or
coronary disease. I cannot discern a basis for such a distinction in the
context of protecting human life and health.


I hope that helps on the question you raised regarding interpreting the
observations attributed to me. I would be grateful if you could post
this reply on IP-Health.


With all best regards, Fred


Frederick M. Abbott

Edward Ball Eminent Scholar

Professor of International Law

Florida State University College of Law

425 W. Jefferson St.

Damon House

Tallahassee, FL 32301 USA



direct tel. + 1-850-644-1572

fax + 1-917-591-3112



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