<nettime> [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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