September 10, 1999
Vice President Albert Gore The White House Washington, DC 20500
Dear Vice President Gore:
Thank you for Mr. Leon Fuerth's letter of August 20, 1999 regarding the worldwide AIDS crisis. As you know, we have longstanding concerns regarding US policy on trade, intellectual property rights and health care, that we have raised on many occasions. We first wrote about the South Africa dispute on July 29, 1997.
We welcome your recent expression of support for policies that would make pharmaceutical drugs less expensive in South Africa. However, we continue to be dismayed at some of the claims that are used to justify US trade pressures. For example, Mr. Fuerth's August 20, 1999 letter implies that US concerns over the South African government's proposals for parallel imports are driven by questions regarding consistency with "international agreements." A more candid statement would be that parallel imports are permitted under international agreements, such as the WTO TRIPS accord, and that US bilateral pressures are about our trade agenda, rather than international law.
We recognize that the WTO does limit the use of compulsory licensing of patents, but as I am sure you know, in cases of public non-commercial use or for national emergencies, the primary country obligation is to provide compensation for the use of a patent. The South African government has always indicated it would comply with this and other provisions of the TRIPS regarding compulsory licensing.
According to Mr. Fuerth's letter and other press reports, it appears as though US trade officials often express concerns that the South African laws may violate some technical obligations of the TRIPS, and these putative technical deficiencies or ambiguities are held out as a rationale for the never ending reviews of the South African Medicines Act. On this score it should be noted that the TRIPS accord is a new agreement with many areas of uncertainty, and no country, including the US, is likely to be in full compliance. For example, the WTO was recently asked by Canada to determine if pharmaceutical patent extensions violate Article 27 of the TRIPS, on the grounds that they discriminate among fields of technology. If the WTO agrees, the US patent extensions would appear to be illegal under the TRIPS. Also, on June 23, 1999 the US Supreme Court ruled that State governments cannot be sued for infringement of patents. These US Supreme Court decisions deny patent owners legal remedies that are required under Article 31 of the TRIPS, pitting the US constitutional doctrine of sovereign state immunity against the requirements of TRIPS. Thus, I would hope that the Vice President and his staff will not make technical compliance with every one of the 70 Articles of the TRIPS a central focus of US policy here.
There is no reason why the US government needs to appoint itself as a supervisor of South African laws on pharmaceuticals. South Africa's recent struggle to overcome apartheid was based upon the desire to have a political system that represented everyone in South Africa, including the poor. With as many as 20 percent of its young people infected with a potentially fatal disease, it is not surprising that South Africa's democratically elected leaders are searching for ways to make treatments more affordable.
I am enclosing two documents for your review. One is an open letter to you, dated August 1, 1999. This letter was drafted and first circulated in May 1999, shortly after the USTR issued its April 30, 1999 report that put South Africa on the US government's watch list for intellectual property violations. As noted in the letter, South Africa was not only taken to task for supporting parallel importing and compulsory licensing of pharmaceuticals, it was criticized for permitting its medical personnel to advocate for the poor at meetings of the World Health Organization. This effort to suppress speech at the World Health Organization illustrates how profoundly out of touch US trade officials are in respecting democratic values.
The second document is a September 3, 1999 letter to Dr. Harold Varmus, asking that the National Institutes of Health (NIH) take steps to permit the World Health Organization to use US government rights in government funded medical inventions, to help the poor. As indicated in the letter to Dr. Varmus, it is our opinion that it is immoral for the US federal government to hoard its intellectual property rights in taxpayer funded inventions while millions suffer and die for lack of access to essential medicines.
We are pleased that you believe an agreement between the US and South African governments is close at hand regarding the South Africa Medicines Act. We hope that this agreement does not further restrict the ability of the elected government of South Africa to protect its own people from a terrible public health catastrophe. We further ask that you join us in urging the appropriate Administration officials to find ways to give public health authorities broader access to current and future US taxpayer funded medical inventions.
Lastly, why doesn't the Vice President sign his letters or reply directly, as he does to corporate executives?
 While TRIPS gives patent, trademark and copyright owners many rights, Article 6 permits national governments to use national discretion in determining when those rights are "exhausted." This is true for policies on parallel imports, but also for a number of other national policies. For example, the US can permit the resale or lending of books, under our first sale doctrine, which is one of several areas where the US government exercises national discretion regarding the exhaustion of rights. So too is the US Supreme Court opinion in Quality King Distributors v. L'Anza International, Inc. (No. 96-1470), 523 U.S. 135 (1998), concerning parallel imports in the US.
 See College Savings Bank V. Florida Prepaid Postsecondary Ed. Expense Bd. (98-149) and Florida Prepaid Postsecondary Ed. Expense Bd. V. College Savings Bank (98-531), (College Savings Bank II). http://supct.law.cornell.edu/supct/html/98-149.ZS.html and http://supct.law.cornell.edu/supct/html/98-531.ZS.html