Drugs, Patents, and U.S. Policy


Robert Weissman

Thanks to new drug therapies, many people with HIV/AIDS in the

United States are now able to live relatively healthy lives. "Triple drug"

therapies, or "drug cocktails" allow HIV-positive people to reduce their HIV

blood load in some cases to undetectable levels. In the Third World, however, where

HIV/AIDS is at epidemic levels and spreading rapidly, these therapies are unavailable to

most HIV-positive people.

The drug therapies are unavailable for a simple reason: they are

unaffordable. And they are unaffordable, to a significant extent, not because the cost of

manufacture is so high, but because patent- or license-holding drug companies choose to

set outlandishly high prices, irrespective of the consequences in human suffering. Patent

rights and other exclusive controls are not etched on holy stone tablets, however. For

countries that are members of the World Trade Organization (WTO), minimum standards are

imposed by treaty. But even though the WTO intellectual property agreement is heavily

tilted toward industry (indeed, it was drafted in considerable part by U.S. pharmaceutical

and software companies), it still affords countries some latitude to bring down drug

prices. One of the most important WTO-legal means is compulsory licensing.

Compulsory licensing laws enable governments to instruct patent

holders to license the right to produce a patented good to competitor manufacturers for a

reasonable royalty — this introduces competition and reduces prices. Compulsory licensing

is explicitly permitted in the WTO intellectual property agreement. The United States

government regularly uses compulsory licensing in the area of antitrust enforcement and in

many other contexts.

But the Clinton administration does not want other countries to

follow the U.S. example.

Dancing to a tune called by the Pharmaceutical Researchers and

Manufacturers Association (PhRMA) and the rest of the industry, the United States has

threatened to impose sanctions, or has actually imposed trade sanctions, on South Africa,

Thailand, India, Argentina, Brazil and others in response to their intellectual property

policies for drugs.

These threats or sanctions come despite country compliance with

their obligations under the WTO, as Lois Boland of the U.S. Patent and Trademark Office

acknowledged in a presentation at a conference on compulsory licensing held in Geneva last


In Thailand, U.S. pressure recently led the Thai government to

restrict dramatically the scope of compulsory licensing.

As a result, thousands and thousands of the approximately one

million Thais with HIV/AIDS are likely to suffer needlessly. According to representatives

of Medicins San Frontieres (MSF, Doctors Without Borders), the price of triple drug

therapy in Thailand is $15 to $23 a day. The daily minimum wage is less than $5 a day.

Compulsory licensing of HIV/AIDS drugs could make therapy much more

affordable. Consider the case of Fluconazole, a drug used to treat cryptococcal

meningitis, a fungal infection of the brain which affects nearly one in five of Thailand’s

HIV-positive population. According to MSF, in July 1998, when Pfizer held exclusive rights

to sell Fluconazole in Thailand, the treatment cost was $14 a day. With Pfizer’s period of

exclusive control now over, two Thai drug companies are also making the drug, and the

price of treatment has dropped to $2 a day.

Were Thailand able to maintain and use its compulsory licensing law,

it would be able to similarly drive down the price of the anti-retrovirals used in the

HIV/AIDS drug cocktails, as well as the price of drugs used to treat opportunistic

infections associated with AIDS or other diseases. Compulsory licensing is no elixir for

the problem for high-priced drugs. Even "reasonably" priced drugs will be out of

reach for much of the HIV-infected population of Africa, for example. Nonetheless, it is a

policy tool that could vastly enhance developing country access to HIV/AIDS and other

essential medicines. But it is a tool the United States government is intent on denying

developing countries. "Patents are not a cause of [drug] access problems,"

rationalized Boland in her remarkably callous and duplicitous comments.

Now, however, there may be hope that the Clinton administration will

be reined in, and developing countries will gain freedom to pursue public health policies

even where they conflict with U.S. corporate interests.

Representative Jesse Jackson, Jr.’s "HOPE for Africa" bill

contains a provision that would prevent the use of U.S. government money to pressure

African countries to adopt intellectual property rules more strict than those required by

the WTO. And legislation that would apply this ban to all developing countries is expected

to be introduced soon. Meanwhile, ACT UP and other members of the U.S. HIV/AIDS activist

community are quickly becoming engaged with the issue — ensuring that, finally, the

Clinton administration will be hearing more than just the drug industry’s point of view on

the matter.


Russell Mokhiber is editor of the Washington, D.C.-based Corporate

Crime Reporter. Robert Weissman is editor of the Washington, D.C.-based Multinational



They are co-authors of Corporate Predators, published by Common

Courage Press. For more information on Corporate Predators, see


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