Bangkok Post - May 22, 2007

US ambassador to Thailand Ralph Boyce reflected on the issue in an interview with Apiradee Treerutkuarkul. Following are excerpts from the interview.

What is the US view of Thailand's announcement of compulsory licensing (CL)?

We understand Thailand's rights under Trips [the agreement on Trade-Related Aspects of Intellectual Property Rights] to use compulsory licensing. But it was meant to be the last measure. As far as the embassy is concerned, in terms of transparency, we did not have much advance notice at all that Thailand was going to go ahead with compulsory licensing. The public health minister said publicly that Thailand had tried to get drug companies' attention for two years. That is the minister's statement, but all I can say is that we at the embassy did not have any real warning that it was coming. And the spirit of the Trips agreement is that a compulsory licence is like the last option, and the preferred order of things is the country and the drug companies [first] try to negotiate a mutually acceptable price. Our preferred outcome [for the] US government is that Abbott [Laboratories] and the Ministry of Public Health come up with a mutually acceptable price, because the key here is finding the balance between the high cost of financing innovation and next-generation drugs and the need to be able to provide those drugs to poor people who are suffering from life-threatening diseases. Compulsory licensing is one way to do that, but it is hopefully the measure you use [after] trying everything else first.

Why was there doubt over the transparency of the process in the latest special 301 report of the Office of the US Trade Representative?

As for the special 301 report in which Thailand has been elevated to the Priority Watch List (PWL), what I want to make clear is that the decision was based on the whole spectrum of intellectual property rights (IPR), not just on the CL issue. In fact, the CL issue was just one among many concerns ranging from DVDs, music CDs, books, software and brand-name apparel. Had there not been a flap about CL, I suspect that Thailand would have been elevated to the PWL anyway because we have been hearing from both Thai and American intellectual property rights holders in Thailand that the situation in terms of enforcement has been getting worse. The flap over CL caused most people to conclude that it must be a form of retaliation. It is a timing issue more than anything. I believe that with the overall IPR problems in Thailand, even without CL there still would have been a decision [to put Thailand on the] PWL.

What is the stance of the US on balancing protection of intellectual property rights and humanitarian needs, especially on the issue of access to drugs in developing countries, including Thailand?

Frankly, there are extreme views on both sides. We all know about some of the publications like the Adelman article [in the Washington Times] in the US. Some charges and allegations have been made against the pharmaceuticals industry here.

As usual, the truth lies somewhere in-between ... The humanitarian issues are important and the Clinton Foundation's announcement that it would create a stockpile of drugs for 16 countries including Thailand, where they could make available expensive drugs for the poor, is a good example of creativity that is very useful in finding that balance, because the companies have to spend massive amounts of money to create an innovation and come up with new drugs to help people who need them. Are they supposed to bear the full burden? Are their stock holders supposed to bear the whole burden of the cost of the research, etc? There is an issue of subsidies, and whether some of the medicines should be subsidised by the governments of the countries. So there are a lot of different ways to do this, rather than looking at it in just black and white.

You also had an opportunity to bring pharmaceutical companies to meet the public health minister? What was that all about?

The role of the US government is to try to facilitate conversation and negotiation, striking the balance, suggesting creative ideas, etc. The only thing the embassy was doing in bringing some of the pharmaceutical companies to meet the previous minister [Phinij Jarusombat] was providing the opportunity for the ministry to hear from the companies. The role of the embassy was not advocacy on that particular issue, but simply door-opening. We do this for a number of ministers and a number of different sectors.

Facilitation of communication between American companies and the Royal Thai Government in every sector is one of the most important roles of the embassy. The more conversations and communication the better, as far as I am concerned.

Do you think Thailand is doing enough in trying to communicate with Washington?

This issue has become such a hot, emotionally-charged issue. I certainly understand why that is, on both the Thai and the US sides. But [we should] get away from the emotion and back towards the communication and try to work together, which Thailand and the US have a great track record of doing for decades. It's important to recall that for the United States, some of our most emotional arguments are with our best friends, usually over trade issues.

With either Japan or the EU, we have had some of the most challenging problems with our closest friends over trade issues. That's because when we get into a relationship, [it becomes] very sophisticated and complicated. This issue has captured people's attention because it is so rare for the US and Thailand to have a big flap. It's unusual.

What is your view of the recent advertisement by USA for Innovation against the Thai policy on compulsory licensing?

I would like to distance the US government from this organisation, which most people had never heard of before. The content of the [advertisement] is insulting in many ways. It does not reflect the government's view. I was surprised when I saw the advert in the newspaper. The letter uses extremely strong words and made several accusations that certainly the US government does not agree with.

What are the details of any plan of action?

First of all, we don't have any plan of action ... The approach we are going to take is to sit down with the Commerce Ministry and discuss ways to get Thailand off the Priority Watch List, not hand a list of demands. This is going to be about mutually exploring how to better enforce the existing laws, and how the US might be able to provide any indoor equipment to facilitate that process.

How is the US going to follow up on Thailand's public health policy on compulsory licensing?

We hope to get in close touch with the Public Health Ministry in the new year, after the election. We are looking forward to meeting Dr Mongkol after meetings in Geneva and Washington. I think it is safe for both sides to strive to find ways to avoid having any more compulsory licences. We can't go back and undo what has already been declared. In a couple of cases, they haven't actually imported generic drugs yet and they're still talking with drug companies. So we want to encourage informal talks to avoid formal announcements.

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