[Reader-list] [Fwd: Open Letter to Barack Obama from Indian health groups]

[Patrice Riemens]

(bwo Toni Prug)


http://lists.essential.org/pipermail/ip-health/2010-April/014857.html

IP battles, India Vs CorporateUSA - might be interesting for one of the
Indian lists you're on, like http://mail.sarai.net/pipermail/commons-law/

it's a fascinating read!

toni

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[Ip-health] Open Letter to Barack Obama from Indian health groups
Judit Rius Sanjuan judit.rius at keionline.org
Sun Apr 18 02:14:01 2010


We have been asked to distribute this Open Letter to Barack Obama from
Indian health groups, expresssing the concern over USPTO's attack on
Public health safeguards of  Indian Patent Law

OPEN LETTER TO THE US PRESIDENT FROM INDIAN HEALTH GROUPS
13 April 2010

Dear Mr. President,

We, the undersigned public interest, health and patients groups in
India, write to express our support for the principle of universal
healthcare for all persons. We believe that every human being
regardless of class, sex, religion, citizenship, insurance or any
other status has a right to the highest attainable standard of health.

Given your stated commitment and recognition of universal healthcare
for US citizens, we are surprised and confused by the actions of the
United States Patents and Trademark Office (USPTO) and the US embassy
in India whose commitments appear to be to advocate against India=92s
own attempts to safeguard public health and ensure universal access to
healthcare.

India's patent law public health safeguards

A key factor influencing the fulfilment of the right to health is the
price of medicines. Artificial monopolies created by patents on
medicines contribute significantly to obscene prices that keep
medicines beyond the reach of the majority of Indians. As a member of
the WTO, India had to comply fully with its obligations under the
TRIPS Agreement to provide patent protection on medicines in 2005. It
has done so in 2005.

The Indian parliament, mindful of its obligations under the Indian
Constitution and the International Covenant on Economic, Social and
Cultural Rights (ICESCR), balanced its obligations under TRIPS by
including in India=92s Patent law several public health safeguards
including a prohibition on evergreening =96 a tactic employed by
pharmaceutical companies of extending patent monopolies by making
minor changes to existing medicines. It also used several TRIPS
flexibilities to ensure access to medicines in India and across the
developing world.

However, instead of respecting India=92s sovereign right to determine
how best to balance its competing obligations, we find that the US
government is actively advocating against the public health safeguards
in India=92s patent law and even pushing TRIPS-plus measures like data
exclusivity and patent linkages in India.
Generic competition and global access to medicines

The revolution in access to HIV treatment around the world started
with an offer from an Indian generic company in 2001 of providing
first line HIV medicines at $350 as opposed to the prices being
offered by patent holders of $10,000 per patient per year. Today,
generic competition has resulted in first line HIV medicines being
provided around the world for less than $90 per patient per year. The
offer of safe, effective and affordable generics combined with large
scale political commitment and funding from the international
community including the Presidents Emergency Plan for AIDS Relief
(PEPFAR) to allow the historic scale up of HIV treatment across the
world. Indeed the necessity for safe, effective and affordable
generics is evidenced most clearly by PEPFAR.

As noted in PEPFAR=92s 5th annual report, a 2007 survey showed that 73%
of ARVs delivered by PEPFAR and 93% delivered through PEPFAR=92s Supply
Chain Management System (scms) project were generic formulations.
PEPFAR partners saved an estimated $64 million =96 a 46% reduction in
the cost of drugs =96 by buying generic versions instead of innovator
drugs.

UNICEF, the International Drug Agency, the Global Fund for HIV, TB and
Malaria, the Clinton Foundation and Doctors Without Borders (MSF) as
well as the governments of developing and least developed countries,
all rely heavily on Indian generics to be able to provide the maximum
number of patients with treatment and medicines for several diseases
and conditions including HIV, heart disease, cancer, mental illness,
vaccines, etc. Several patients in these countries also rely on Indian
generics that they individually import from India where their
governments are unable or unwilling to provide them access to
medicines and treatment. Approximately, 50% of the essential medicines
that UNICEF distributes in developing countries come from India and
75-80% of all medicines distributed by the International Dispensary
Association (IDA) are manufactured in India. We would also like to
point out that 67 % of medicines exports from India go to developing
countries.

India=92s ability to continue supplying safe, effective and affordable
generics to its own citizens and to most of the developing and least
developed world depends on the continued and balanced use of TRIPS
flexibilities.

It is may be worth noting that during this period when Indian generics
have sustained the lives of millions across the world, the US based
multinational pharmaceutical industry has been none the worse for it
as evidenced by their ever increasing profits.
USPTO-Pfizer meetings in India

Despite all this, we find that that the US embassy along with the
USPTO has tied up with multinational pharmaceutical company Pfizer in
holding meetings across the country pushing a TRIPS-plus agenda. The
meetings also raise ethical concerns with a regulatory body like the
USPTO tying up with a company that it is supposed to regulate.

The meetings being held by the USPTO and Pfizer appear to be designed
to circumvent the 2007 New Trade Policy Template which includes
removing demands for patent linkages and recognising the full extent
of the flexibilities re-affirmed by the Doha Declaration. It is
precisely these flexibilities that are under attack at the USPTO-
Pfizer meetings.

Apart from pushing for TRIPS-plus provisions like data exclusivity and
patent linkages in India, the USPTO has also been actively speaking
against Section 3(d), the provision in India=92s patent law prohibiting
evergreening.

We also take this opportunity to point out that the USPTO
presentations at these meetings are, at best, deliberately misleading
on international, US and Indian law and policy. This includes
misleading statements on Article 39.3 of TRIPS, on the impact of the
US Supreme Court=92s KSR judgment, the role of the WHO on matters
related to IPR and public health as well as a number of
misrepresentations on Indian law and policy. We enclose notes from the
Delhi USPTO-Pfizer meeting for your reference.

Pfizer
The choice of Pfizer as a partner for the USPTO meeting is telling. In
Asia, Pfizer is well known for its tactics in the Philippines to delay
generic entry of medicines. Most notable was their litigation against
the use of the Bolar exemption by the Philippines FDA followed by its
litigation to enforce patent linkages. More recently, Pfizer has been
embroiled in bribery allegations in the Philippines; a matter the US
Departments of Justice and Commerce are now being asked to consider
under the Foreign Corrupt Practices Act.
In the US, Pfizer has just settled numerous complaints related to
unethical drug promotion with a massive fine of $US 2.3 billion.

USPTO Regrets!
When public interest groups and the media responded to the unethical
lobbying practices of the USPTO-Pfizer duo in India, Mr. Peter Pappas,
the Chief Communications Officer of USPTO posted an official statement
in the blog of Knowledge Ecology International (KEI) as a response to
one of the blog postings. In which, Mr. Pappas stated =93... a single
program late last year in India where a mistake was made and Pfizer
was invited to co-sponsor a public discussion program. The USPTO has
since taken corrective action so that this will not happen again.
Contrary to what you suggest, however, it is not the USPTO's policy or
practice to involve private sector rights holders as co-sponsors of
our events. We regret that this occurred with respect to the Indian
forum, but that was the exception and not the rule.=94

Though, USPTO officially regretted associating with Pfizer, we feel
that it has the moral duty to send regret letters to all the invitees
and participants of the event. A note on a website is not sufficient
in this regard. It has to be noted that scores of public interest and
patient groups as well as media persons were invited and grossly
misinformed by the USPTO-Pfizer duo.

In this regard, we also seek apology from US Embassy in India and
First Secretary for Intellectual Property for associating with Pfizer
as against the official Policy or practices of the USPTO. We also urge
you launch a formal investigation into the links between the USPTO in
India and Pfizer and to take necessary action against the officials
concerned for misinforming the Indian media and the general public
about its own Patent laws and public health safe guards and officials
who teamed up with Pfizer to engage in unethical lobbying practices
with various stake holders in the field of access to medicines in India.
What of the WHO resolution on Global Strategy on Public Health,
Innovation and Intellectual Property Rights?

In May 2009, the United States along with all the members of the WHO
put the final touches on the Global Strategy on Public Health,
Innovation and Intellectual Property Rights (the =93Global Strategy=94).
The Global Strategy, signed in May 2008 recognises that the patent
system has not delivered on medicines for neglected diseases which
affect the developing and least developed world the most. It also
recognises that the use of TRIPS flexibilities can facilitate access
to pharmaceutical products for developing countries. This is precisely
what India is doing and what the US should be supporting.

However, instead of the US government promoting new thinking on IPR,
innovation and access, we find that financial and technical resources
of the USPTO/US embassy are being ploughed back into their old
strategy of promoting TRIPS-plus measures and undermining the use of
TRIPS-flexibilities in India based on widely discredited arguments
that these will assist India in achieving access to medicines. We
cannot stress enough the impact of these actions being at the cost not
only of Indian citizens but of millions across the developing and
least developed world.

This level of aggressiveness being displayed by the USPTO and the US
embassy on matters related to intellectual property rights is
something we have not witnessed in the eight years of the previous
administration.

The actions of the USPTO and US embassy actions in India are a direct
threat to India=92s continued ability to be the =93pharmacy of the
developing world.=94
We ask that the US immediately cease their activities in India in
promoting ever increasing intellectual property protection and TRIPS-
plus measures and in lobbying against the use of TRIPS-flexibilities
by the Indian Parliament. We also ask that:

=95 The US should disengage from any activities that hamper the
utilisation of TRIPS flexibilities in developing and least developed
countries;

=95 The US should not use any diplomatic/economic/financial tools such
as super 301 to enforce TRIPS-plus agenda in developing and least
developed countries; and

=95 The US should not attack the domestic policy space of the developing
and least developed countries which is available under various
treaties, to further the business interests of its pharmaceutical
companies.

The stakes are high for us; we are fighting for our lives and health
and we are keen to see where the new US administration will place
itself in this battle.
Sincerely,
National Working Group on Patent Law (NWGPL)

All India Drug Action Network (AIDAN)

Jan Swasthya Abhiyan (JSA)

Centre for Trade and Development (Centad)

Drug Action Forum, Karnataka (DAF-K)

Delhi Science Forum (DSF)

Delhi Network of Positive People (DNP+)

International Treatment Preparedness Coalition =96 India (ITPC =96 India)

Knowledge Commons

Initiative for Health Equity & Society (IHES)

Diverse Women for Diversity

All India Peoples Science Network (AIPSN)

Action Aid India

Centre for Education and Communication=92 (CEC)

Sama-Resource Group for Women and Health

Centre for Health and Social Justice (CHSJ)



Cc: US Embassy in India