Honourable Minister
Mr Kamal Nath
Ministry of Commerce and Industry
Udyog Bahavan
New Delhi 110001
India

23 February 2005

Reference: ACL/AD/lp

Excellency,

I have the honour to refer to Indiašs leadership in promoting access to and supplying affordable essential generic HIV medicines to those most in need in developing countries, which has long been recognized and applauded by the international community. India can rightly take pride in the fact that it has significantly supported the response to the global AIDS emergency through helping to ensure AIDS medicines are more affordable and accessible.

Affordable HIV medications from India have so far saved thousands of lives yet more than 8,000 people around the world continue to die every day because they have no access to treatment. Despite concerted efforts across the world, only about one in ten people in urgent need of HIV antiretroviral treatment in low- and middle-in come countries has access to existing medicines.

Current legislative proposals intended to take the 1970 Indian Patents Act beyond the commitments agreed in the World Trade Organizationšs Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) threaten to undermine Indiašs leadership in providing affordable medicines. For example, the requirement that countries wishing to import from India under the WTO 30 August 2003 Decision must issue a compulsory license in every case goes far beyond the WTO Decision. This requirement in the Indian Ordinance places a cumbersome and often unnecessary administrative burden on the importing country. Often, there will be no patent in the importing country and compulsory licenses are only required where a valid patent has been issued. Under the WTO Declaration on TRIPS and Public Health (the Doha Declaration) of November 2001, Least Developed Countries are not even required to issue patents in the pharmaceutical sector until 2016. In addition, the limitations under the Ordinance of the ŗpre-grant opposition rule˛ contained in the previous law removes an important opportunity for People Living with HIV and other members of civil society to participate in an open and transparent process.

The implications of the current Ordinance are potentially devastating: the vast majority of countries hardest hit by AIDS do not have sufficient manufacturing capacity in the pharmaceutical sector and must rely upon imports from major producing countries such as India if they are to succeed in scaling up access to HIV treatment to the millions of their people in need.

UNAIDS strongly supports the rights of governments to avail themselves of the flexibilities in TRIPS in promoting the widest possible access to affordable medicines and technologies.

Therefore, we would respectfully urge you to consider all appropriate legal means to protect and scale up access to essential affordable medicines. The Doha Declaration, in which India played an important role, makes clear that the interests of public health and equitable access to medicines for all should be primary concerns in the application of the TRIPS Agreement and related trade and intellectual property rules.

UNAIDS has learnt that a Global Day of Action is planned for 26 February 2005 against the Indian Patent Ordinance. Civil society, organizations of people living with HIV and AIDS and the media will be watching closely. This day presents an opportunity for India to send out a strong message in support of both research innovation and access to affordable HIV-related pharmaceuticals and other essential medicines, while fully complying with the applicable multilateral trade and intellectual property agreements.

Please accept, Excellency, the assurance of my highest consideration.

Achmat Dangor
Director
Advocacy, Communication and Leadership

cc: Dr Prasada Rao, UNAIDS Regional Director, Regional Support Team, Bangkok
Permanent Mission of India to the United Nations and other International Organizations in Geneva