May 11, 2009
05.11.09, 9:28 PM ET
Advocates Claim Victory as Government Cuts & Freezes Price at
"Colombia's action today to cut the price for Abbott's Kaletra is of major importance, a move that will undoubtedly help save many, many lives by making lifesaving AIDS drug regimens more widely available in the country. We salute the tireless AIDS activists and advocates on the ground who raised awareness through protests and media outreach that helped keep this issue in the forefront. I am not aware of another instance in which the government of a country came in and cut and put a price ceiling on an AIDS drug." said Clint Trout, MPH "However while this is an important victory, we call on the Colombian government to accede to local activists demands to issue a compulsory license for Kaletra, which would allow
[ILLEGAL EXPROPRIATION OF FOREIGN ASSETS, IN VIOLATION OF THE WTO TRIPS AGREEMENT]
In January of this year, as part of an ongoing multinational campaign to lower drug prices and improve access to lifesaving AIDS treatments globally, AIDS advocates from three countries--
"In our protests in the three countries in January, we pressed Abbott to reduce the price of Kaletra in
In late March, a coalition of AIDS activists [EXTREMISTS] known as the Coalicion de Activistas por el Acceso Universal spearheaded by
The Colombian [EXTREMIST] organizations: Mesa de Organizaciones con Trabajo en VIH/SIDA, the Red Colombiana de Personas Viviendo con VIH o con SIDA, Mission Salud, and IFARMA requested a compulsory license for Kaletra from the
Abbott has long been the target of multinational protests and legal actions over the pricing of its AIDS drugs including Kaletra and Norvir. Over the past several years as many of Abbott's industry peers have significantly lowered the prices of their own lifesaving AIDS medicines on their own volition and in response to worldwide humanitarian need, Abbott has remained steadfast in its refusal to do so, or it has countered advocates' and governments' demands with only modest price reductions.
According to the website, www.aidsmeds.com , "Kaletra, a protease inhibitor (sold under the brand name Aluvia in some parts of the world), is actually two drugs combined into a single capsule: lopinavir and low doses of ritonavir (Norvir), another protease inhibitor manufactured by
-- Abbott promotes
-- Abbott uses unorthodox and unethical marketing strategies in
(1) United Nations Development Program ( www.undp.org )
(2) Resumen de Situacion de la Epidemia por VIH/SIDA en
(4) World Health Organization (
(5) 2008 UNGASS Report,
(7) Garavito, L, Gomez, F. (2006) Analisis regulatorio del mercardo institucional de medicamentos antiretrovirales en
(8) Personal Communication with
(9) Local price survey.
(10) AHF can provide 1st hand accounts on request.
(11) Garavito, L, Gomez, F. (2006) Analisis regulatorio del mercardo institucional de medicamentos antiretrovirales en
(12) Clinton HIV/AIDS Initiative. www.clintonfoundation.org
- The WTO TRIPS flexibilities” contained within TRIPS Article 31, the Doha Declaration on TRIPS and Public Health, the TRIPS Council Decision on Paragraph 6 and the proposed Article 31bis Waiver to the TRIPS Agreement concerning same emphasize that intellectual property are property rights, first and foremost, within the meaning of TRIPS Preamble Paragraph 4, and are deserving of adequate protection against governmental expropriation.
- Since property rights are natural, individual-based human rights, within the meaning of the 1948 Declaration, the 1948 American Declaration on the Rights and Duties of Man, the 1976 International Covenant on Economic, Social and Cultural Rights, and ultimately, the United States Constitution (1787) and its accompanying Bill of Rights (1791), then governments must pay heed to the strict substantive and procedural conditions imposed on unauthorized governmental ‘takings’ of private IP rights set forth within WTO TRIPS Article 31(a), (d), (h), (i), (j) and (k); 44.2; and 62.44.
- While the TRIPS Agreement may have grandfathered the highly disputed Paris Convention grounds for issuing compulsory licenses (incorporated by reference within TRIPS Article 2 and the Preamble to TRIPS Article 31) (‘the broad mouth of the funnel’), these bases remain tightly circumscribed by the substantive and procedural conditions imposed by the subsections to TRIPS Article 31. These provisions were arguably intended to ensure protection of patentees’ affirmative right to substantive and procedural due process of law against wanton governmental seizures of exclusive private property (human) rights within the meaning of the Fifth Amendment of the U.S. Bill of Rights and other U.S. constitutional provisions (‘the narrow neck of the funnel’).
- This means that when a government or an intergovernmental organization such as the WHO, etc. wishes to ‘take’ patented private medicine or medical technology products for a ‘public use’ (i.e., on the basis of an identified and declared ‘public interest’), that government or intergovernmental organization must pay itself, or cause a selected third party licensee to pay, full, complete and adequate fair market value compensation for such patents. After all, this is consistent with established U.S. Supreme Court jurisprudence and with the understanding of the parties to the WTO TRIPS and WIPO Agreements. And, fair market value means ‘arms-length’ pricing agreed to between a willing buyer and a willing seller; not some unilaterally predetermined price deemed to be ‘fair’ by a national or regional government or intergovernmental body.
[See: Desk Review of the Intergovernmental Working Group on Public Health, Innovation and Intellectual Property from a Right to Development Perspective, High-Level Task Force on the implementation of the Right to Development, United Nations High Commissioner on Human Rights, A/HRC/12/WG.2/TF/CRP.5, at: http://www2.ohchr.org/english/issues/development/right/docs/A-HRC-12-WG2-TF-CRP5.doc; http://www2.ohchr.org/english/issues/development/right/high_level_task_force_Right_to_Development_5th.htm ].
[See: ITSSD Comments Concerning (Document SCP/13/3) Exclusions from Patentable Subject Matter and Exceptions and Limitations to the Rights , World Intellectual Property Organization (WIPO) Standing Committee on the Law of Patents (March 2009) at: