Health GAP Statement on the 2010 Special 301 Report
Although it has increased its verbal support for the Doha Declaration on the TRIPS Agreement and Public Health, the 2010 Special 301 Report continues to punish countries for their lawful refusals to adopt TRIPS-plus intellectual property protections and for using TRIPS-compliant flexibilities that positively impact access to medicine. Three “complaints” by the USTR stand out: alleged lack of data exclusivity for pharmaceutical products, adoption of patent standards that decrease opportunities for obtaining patents on medicines, and use of compulsory licenses.
The USTR targeted fifteen countries (Algeria, Argentina, Brazil, Chile, Dominican Republic, Egypt, India, Indonesia, Lebanon, Malaysia, Mexico, Pakistan, Paraguay, Turkey, and Vietnam) for their alleged failure to adopt US-style data exclusivity is much more stringent than the data protection rules codified in TRIPS. Similarly, the USTR chastised India and the Philippines for adopting patentability standards that would prevent patents on minor variations to existing medicines. Venezuela, Brazil, and Finland were identified as not providing for pharmaceutical patents to the extent desired by the U.S. Finally, even though the USTR lightened its criticism of Thailand for having issued compulsory licenses several years ago, it warned Thailand to balance IPR concerns carefully. Conversely, Ecuador was specifically mentioned as a country to be watched because of a pending decision, now finalized, to issue a compulsory license on an AIDS medicine.
In addition to these very direct violations of the Doha Declaration, the USTR has continued to pursue draconian border and enforcement measures that will inevitably restrict legitimate trade in lawful generic medicines. With 10 million people waiting in line for AIDS medicines, US trade policies, including the Special 301 list, that threaten access to medicines must be condemned in the strongest terms.