Executive Office of the President
Office of the United States Trade Representative
Washington, DC 20508
February 9, 2001
Mr. Gregg Gonsalves
Director of Treatment Advocacy
Gay Men's Health Crisis
119 West 24th Street
New York, New York 10011-1913
Thank you for your letter to Ambassador Robert Zoellick concerning the U.S. Government's requesst for a WTO dispute settlement panel on Brazil's patent law. He asked that I respond to your letter, and clarify a misunderstanding that has arisen about the nature of this dispute.
As you know, last week the WTO established a panel to consider our claim that Article 68 of Brazil's patent law appears to violate the WTO agreement on Trade-Related Intellectual Property Rights (TRIPS). Article 68 of Brazil's patent law provides in part that a compulsory license shall be issues against a patented product if that product is not being manufactured in Brazil within three years of issuance of the patent. This appears inconsistent with TRIPS Article 27, which states that patents shall be available without discrimination as to whether products are imported or locally produced.
As such, this dispute is not about health or access to drugs. It is about a measure that discriminates against imported products in favor of locally produced products, regardless of whether these products are health-related or not. By discriminating against imported products, Brazil is not trying to remedy a situation where patented drugs are not available to the public, or any other situation which might legitimately warrant the use of compulsory licensing. Traditionally countries employ manufacturing requirements to create jobs. This requirement is a discriminatory measure that is essentially intended to be protectionist.
Please keep in mind that it is Article 71 of Brazil's patent law, not Article 68, that permits compulsory licenses for the purpose of addressing national health emergencies. We have not challenged Article 71.
I hope that this helps to clarify the U.S. Government's position in this dispute over Brazil's patent law. If you have any further questions, please do not hesitate to contact Claude Burcky on my staff at (202) 395-6864.
Assistant United States Trade Representative for Services, Investment and Intellectual Property Rights