By standing up to pressure from ‘big pharma’ over cheap anti-AIDS drugs, Thailand may have created an opening in global trade rules that will permit developing countries to more readily break patents in times of public health emergencies. The fact that the US has clarified that Bangkok had not violated any laws under the special provisions of the Trade-Related aspects of Intellectual Property (TRIPS) of the World Trade Organisation (WTO) is significant.

Last week, the US Trade Representative’s office (USTR) placed Thailand on a watch list of countries that had, in general, violated intellectual property rights. Thailand first broke the patent on the anti-retroviral (ARV) drug ‘Efavirenz’ produced by US pharmaceutical company Merck Sharp and Dohme last November, and went on to do the same with ‘Kaletra’, another anti-HIV/AIDS drug from US pharma major Abbott Laboratories as well as ‘Plavis’, a blood-thinner made by Sanofi-Aventis, in January.

Noticeably, there was lack of precision in the USTR annual report on intellectual property protection regarding the Thai move to issue a compulsory license (CL) early this year to secure cheaper alternatives for Kaletra, the drug marketed by Abbott, from India. “While the US acknowledges a country’s ability to issue such licences in accordance with WTO rules, the lack of transparency and due process exhibited in Thailand represents a serious concern,” states the report.

Since then the advantage secured by Thailand in testing — and winning — the right to use CLs has earned it praise from a broad section of activists, HIV patients and academics at home and abroad. “Other countries will feel more confident in issuing CLs, rather than threatening to issue them but not doing so due to pressure,” says Paul Cawthorne of Medecins Sans Frontieres (MSF), the international humanitarian agency. “This can set a precedent about what developing countries can do under TRIPS,” adds Jacques-chai Chomthongdi, of Focus on the Global South, a Bangkok-based think tank.

Washington’s fuzzy language towards Thailand for invoking a CL stands in contrast with the tough stance taken previously to defend brand-name drugs when threatened by the special provisions under TRIPS, which permit a developing country to produce or import generics. These provisions permitting developing countries to break patents in times of a national health crisis were approved during the WTO meeting in Doha, in 2001.

The Thai public health officials out to capitalise on the frequently debated WTO rule are in step with an impressive record the country has maintained in caring for its citizens with HIV/AIDS and reduce the spread of the killer disease. Currently, some 90 per cent of people who need ARVs are treated through a universal health care scheme. The country has over 600,000 people infected with HIV. “All CLs have done is to open up a monopolistic market,” says Cawthorn of MSF. “Why should the pharmaceutical companies be worried about that?” — IPS