Four Department of State cables on Thailand, for Special 301 Review (Years 2009 to 2011)

The following are four US Department of State cables discussing the status of Thailand as regards the USTR Special 301 review. KEI recently received the cables from the US Department of State in response to an earlier FOIA request.

The four cables cover the first three years of the Obama Administration. I was interested in the Department of State reports on the Special 301 review fior Thailand in part because my son Fenimore Love spoke directly to Hillary Clinton in February 2008, about US trade pressures on Thailand over compulsory licenses. The exchange took place at the Washington Lee High School, in Arlington, where Fenimore was a student, and having twice visited Thailand, he was aware of the trade disputes over patents and access to medicine. Hillary took Fenimore aside and expressed sympathy for the Thailand compulsory licenses. The following year, Clinton became the Secretary of State, and appointed a number of IPR hardliners in key policy positions.

The first cable, on March 3, 2009, complained that compulsory licenses on cancer drugs were designed to solve budget problems rather than help the poor. In a section titled “Compulsory licenses still in place,” there was a discussion of “breaking the patents on seven pharmaceutical products.” According to the cable, rights holders saw “the 2008 expansion of the compulsory licensing to cancer drugs as evidence that the government was using CLs as a solution for budget problems rather than focusing on access for poor patients.” The cable reported as “positive” the promise by the new Prime Minister to provide “full consultation in advance of any action” and a statement by the Foreign Minister to visiting US business executives that “the government will not issue any new CLs.”

The second cable, from March 1, 2010, provides a detailed assessment of the Abhisit government, which it lauded for “the placement of dedicated IPR professionals in key positions.” State was pleased that “the current government has issued no compulsory licenses” but the “international” pharmaceutical industry “continues to struggle with issues such as patent reform, government procurement and pharmaceutical marketing and sales practices.” State was pleased that Pajchima Tanasanti was now the Director General of the Department of Intellectual Property (DIP). The cable discussed the effort of the Ministry of Public Health to “limit the scope of patentability for medicines, introduce additional opposition proceedings, and expand the government entities that could issue compulsory licenses.” State was pleased to report the opposition to these moves by the DIP. State “urged the government to dialogue with the pharmaceutical sector for the expertise experience companies could bring to the table in the provision of health services,” and noted that “Though the government is under no obligation to do so, it has included some foreign company representation in policy deliberations,” although not enough to “demonstrate a genuine interest in taking their potential contributions seriously, according to industry sources.”

The third cable, dated December 23, 2010, is a 10 page report on the Special 301 Out-of-Cycle Review. Copyright enforcement issues are discussed a good deal. On the issue of Thailand amendments to its patent law, State reports that “Of particular concern, however, to the pharmaceutical industry has been the government’s discussions about ‘evergreening patents’ and proposed patent examination guidelines for innovative pharmaceutical patents.” State reported that the Ministry of Health had extended the term of two compulsory licenses on HIV drugs, to the life of the patent, “without prior consultations with the affected companies.”

The fourth cable, dated March 1, 2011, is a 9 page analysis of Thailand for the Special 301 process. State reports that “The U.S. pharmaceutical industry also continued to complain about its lack of participation and engagement in the ongoing health policy and intellectual property discussions at the Ministry of Health.” The rest of the cable seemed like a cut and paste from the December 23, 2010 cable.