The Structural Power of Strong Pharmaceutical Patent Protection in U.S. Foreign Policy

Summary

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I. Introduction. II. Part One: The Strong Patent Protection View Downplays The Fact That Patents Are Private Property Rights Subject To Similar Conditions As Any Trade Monopoly.III. Part II: The National Interest In United States Foreign Policy: Where Does Access To Essential Drugs For Africans With Hiv/Aids Fit, If At All? A. The National Interest. B. Africa: Access to Essential Drugs and the National Interest .C. Access to Antiretroviral Drugs versus Prevention in U.S. Policy .1. African Oil versus the HIV/AIDS Pandemic in U.S. Policy. 2. Pharmaceutical Company Profits versus AIDS Patients in U.S. Policy.3. Lobbying the U.S. for Greater Empathy Before President Bush's 2003 State of the Union Address.4. U.S. Support for Strong Patent Protection over Access to Essential Drugs at the WTO D. Cipro and the Anthrax Scare: Testing U.S. Support for Strong Patent Protection at Home 1. 2003: U.S. $15 Billion for Fighting HIV/AIDS .IV. Part III: Poverty The Latest Fad In The U.S.'S Policy Of Strategic Ambiguity. A. The Discovery of Poverty: From the IIPE 2000 Study to the Attaran/Lee Gillespie 2001 Paper. B. Limits of the Gillespie-White/Attaran Poverty Thesis. V. Conclusions

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The Structural Power of Strong Pharmaceutical Patent Protection in U.S. Foreign Policy

James Thuo Gathii. Assistant Professor, Albany Law School. This paper was originally presented at the University of Iowa College of Law, for The Journal of Gender, Race and Justice's 7th Annual symposium titled: "American Presence Abroad: U.S. Foreign Policy and Its Implications for Gender, Race and Justice," October 25th and 26th, 2002. I would like to thank my wife Muthoni and our sons Gathii and Mwangi for their unwavering love and support. I would also like to thank Robert Emery, Mary Wood and Linda Murray for their help. To Oko Akwei and Kohei Higo, thanks for your excellent research assistance and to the editors of this journal for all their marvelous help. I dedicate this article to Agnes Njoki Kirera.While the Chief Justice's dissent says there are'weapons [such as cartels or boycotts] in the arsenals of foreign nations' sufficient to enable them to counter anticompetitive conduct . . . such . . . political remed[ies are] hardly available to a foreign nation faced with the monopolistic control of the supply of medicines needed for the health and safety of its people.1

I. Introduction

There are two distinct, albeit mutually reinforcing, stances within U.S. foreign policy on HIV/AIDS. The first of these stances favors strong international pharmaceutical patent protection, unencumbered by any restrictions, as the best alternative to ensuring availability of drugs to treat those infected with HIV/AIDS.2 Unlike the first stance that is uncompromising in supporting patent protection, the second position is steeped in humanitarian gestures, such as extending U.S. assistance particularly in efforts to prevent the spread of HIV/AIDS outside the United States. Strong patent protection is, however, the primary U.S. foreign policy position on how best to facilitate access to essential medicines under patents held by U.S. and western pharmaceutical corporations. In that sense, provisions of humanitarian assistance ought to be understood as the policy prescription most compatible with the non-negotiability of strong pharmaceutical patent protection.

My basic thesis in this paper is that the humanitarianism underlying U.S. assistance, particularly in preventing the spread of the HIV/AIDS pandemic around the world, plays a significant role in simultaneously disguising and legitimating the uncompromising support of the United States government for strong international pharmaceutical patent protection. Indeed, by loudly proclaiming its generosity, the United States manages to disguise the fact that its commitment to a strong regime of pharmaceutical patent protection has a lot to do with limiting access to antiretroviral drugs to large numbers of those infected with HIV/AIDS outside the United States.

In addition to distancing the relationship between strong pharmaceutical patent protection and access to essential drugs by highlighting the more appealing image of the United States as a major benefactor of the global campaign against HIV/AIDS, U.S. foreign policy on HIV/AIDS has turned to poverty in sub-Saharan Africa as a major explanatory factor to account for the extremely low level of access to antiretroviral drugs on patents to treat the disease. Increasing U.S. financial support to combat the spread of the pandemic, while simultaneously harping on the argument that Africans are too poor to afford antiretroviral drugs, plays particularly well to ward off criticism regarding the apparent harshness of U.S. support for strong patent protection.

Seen in this context, I argue that U.S. policy is moving in the direction of de-linking or discrediting any association between strong patent protection and access to antiretroviral drugs for HIV/AIDS infected populations outside the United States. Placing a high premium on humanitarianism as the primary policy response to the pandemic in turn contributes to the invisibility of the link between strong patent protection and access to essential drugs. It is, therefore, my argument that while the humanitarianism that typifies U.S. foreign policy on HIV/AIDS and other life threatening diseases is important, U.S. support for a strong patent regime imposes huge barriers of access to patented antiretrovirals. Specifically, the strong protection of patents in the WTO's Trade Related Aspects of International Property Rights Agreement,3 (TRIPS or the treaty hereinafter), stands in the way of enabling the treaty to be construed to permit governments to override it with a view to providing antiretrovirals drugs to thousands of Africans infected with HIV/AIDS.4

To the extent that patents are therefore a barrier to access antiretrovirals, the TRIPS Agreement is no more than a form of structural power.5 The United States, together with its coalition of western intellectual property exporting countries, exer...

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