Obama's Broken Promises on IP and Meds

November 5 2010 

Prof. Brook K. Baker  

+1 617 259 0760, b.baker@neu.edu


President Obama Travels to India Bearing Broken Promises on Access to Generic AIDS Medicines

Why Is the U.S. Lobbying for Intellectual Property Rights That Will Drive Up the Cost of AIDS Drugs?


(Washington DC) President Obama travels today to India for the first time since his election, arriving on November 6. His trip will feature high-level meetings organized by powerful U.S. and European corporate interests, including an address to the U.S.-India Business Council, a corporate interest group hosted by the U.S. Chamber of Commerce that includes all major multinational pharmaceutical companies among its members. U.S. Assistant Secretary of Commerce Suresh Kumar confirmed last week on the sidelines of a business conference that securing more restrictive intellectual property rights for U.S. companies was a key U.S. demand. He said, ?[the US is] lobbying to do here, to protect international property rights, to protect our patents.?[i]

Civil society organizations in the U.S. and India are gravely concerned that President Obama is seeking policies that will undermine access to affordable Indian generics. Low cost, generic versions of AIDS medicines made by Indian manufacturers represent approximately 80% of medicine purchases by the US and other donors?creating hundreds of millions of dollars in cost savings that would ensure more people can obtain life saving treatment.[ii] The U.S., through the bilateral AIDS program PEPFAR, is the largest procurer of generic AIDS medicines.[iii]

The White House is pressuring India to ratchet up protection of intellectual property rights, despite the critical role India plays in keeping global AIDS treatment budgets as low as possible for U.S. 

programs. In May 2010, the United States Trade Representative (USTR) released its annual "Special 301 Report," listing countries that USTR claims are not sufficiently protecting intellectual property. India was given "Priority Watch List" status, in part because India's laws require patented medicines to show actual increased effectiveness?a public health policy that prevents Big Pharma from "evergreening" patents. Patent evergreening has been shown to result in increased medicine prices in the U.S. and Europe, without benefitting patients.

 Activists are concerned that influence on the White House by the pharmaceutical lobby will result in higher medicine prices?at the same time President Obama is refusing to allocate increased funding for cash-strapped AIDS programs.

For example, one year before the release of the 2010 Special 301 Report, the US-Indian Business Council also criticized India's law on the "scope of patentability" of medicines, in a report released in June 2009. This report was circulated when USTR Ron Kirk traveled to India for the first time; Kirk attended the meeting where the report was launched.

The U.S. as well as European countries are also challenging India to grant monopoly protection to the data that drug companies use to obtain regulatory approval for a medicine. This measure, called "data exclusivity," would undermine cost cutting generic competition by delaying the entry of generics to market. Data exclusivity is not required by the World Trade Organization?but pharmaceutical companies have pushed aggressively for it. India's refusal to create a regime of data exclusivity was another feature of its Special 301 Report listing.

"As a candidate, Obama made a promise in writing to defend the right of countries to prioritize public health and access to medicines, above the commercial interests of pharmaceutical companies," said Asia Russell of Health GAP. "He is breaking that promise. As a result, India's ability to make low cost, generic versions of newer medicines is under threat, and U.S.-funded AIDS treatment programs will be forced to waste money procuring more costly medicines. Obama should reconsider this wrongheaded position."[iv]

At a public consultation held in Washington, D.C. on October 28 with the U.N. Special Rapporteur on the Right to Health, experts from around the world testified that the U.S.?s pressure on India will have major impact on drug prices throughout the world. ?India is often called the pharmacy to the developing world,? noted Matthew Kavanagh of Health GAP. ?If the U.S. gets its way in India it will mean new AIDS drugs will again be out of reach for communities most in need in Africa, Asia, Latin America and the Caribbean.?

Health GAP has filed a complaint with the U.N., along with public health groups from throughout the world, alleging the Special 301 List violates the international right to health as well as WTO rules requiring multilateral dispute resolution. Full testimony from the consultation and the complaint is available at www.healthgap.org/UNComplaint . Other examples of Obama Administration pressure on India include measures to:

? Finalize a US-India Bilateral Investment Treaty (BIT) with provisions that would prevent capital controls. Such controls have been shown to dampen speculation and currency inflation that in turn increase the price of its exported medicines. The BIT would also allow Big Pharma to make unlimited investments aimed at taking over the Indian generic industry and would allow transnational corporations to directly sue India for regulations and actions that impact their expectation of monopoly profits; ? Increase intellectual property enforcement measures that could interrupt the trade and transit of legitimate generic medicines destined for foreign countries;

? Garner public support in India for heightened intellectual property protections and increased enforcement; and to

? Train patent examiners and judges to decide favorably on patent claims.


[i] Economic Times, ?US Lobbying for Strong IPR Regime in India,? 

October 26 2010.

[ii] See Holmes, C. et al., ?Use of Generic Antiretroviral Agents and Cost Savings in PEPFAR Treatment Programs,? Journal of the American Medical Association.


[iii] See Waning, B. et al., "A lifeline to treatment: the role of Indian generic manufacturers in supplying antiretroviral medicines to developing countries," Journal of the International AIDS Society, 2010, 13:35, available at http://www.jiasociety.org/content/13/1/35


[iv] ?Barack Obama and Joe Biden believe that people in developing countries living with HIV/AIDS should have access to safe, affordable generic drugs to treat HIV/AIDS. They will break the stranglehold that a few big drug and insurance companies have on these life-saving drugs.  They support the rights of sovereign nations to access quality- assured, low-cost generic medication to meet their pressing public health needs under the WTO?s Declaration on Trade Related Aspects of Intellectual Property Rights (TRIPS).? See: Barack Obama and Joe

Biden: Fighting HIV/AIDS Worldwide:www.barackobama.com/pdf/issues/FactSheetAIDS.pdf

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