Obama Admin and Compulsory Licensing in China

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This issue comes up every now and then. Several laws in China, including the Anti-monopoly Law and the Patent Law, allow for compulsory licensing of IP. This essentially means that under certain circumstances, the government may grant a third party a patent license even without the approval of the IP owner.

Internationally, this has led to big-time fighting between IP owners (mostly the MNC pharmaceutical companies) and third world countries/NGOs. This usually happens when there is a public health emergency (e.g. AIDS) and a lack of certain meds at “reasonable” prices.

Traditionally, the U.S. has carried water for the pharma companies, even going so far as to file suit with them as interested parties. When new laws are envisioned (e.g. the recent Patent Law amendments in China), the U.S. government position has been to push for weaker compulsory licensing language.

So what would the Obama Administration do if faced with this sort of issue?

New legal provisions, coupled with very important time-sensitive policy issues such as climate change, have many folks thinking that China may very well utilize compulsory licensing at some point in the near future.

I would be surprised if that happened, but it is an interesting question to think about. Although this is an oversimplification, one can pose the question in the following manner: “Will the Obama Administration be on the side of the MNCs or on the side of solutions to important international problems like climate change or public health emergencies?”

The recent negotiations on the environment seem to indicate that the Obama Administration will go to bat for U.S. patent holders. On the public health side of the argument, the current debate over health care reform in the U.S. provides us with some guidance.

Activists in the U.S., as well as Thailand and other developing countries, have accused the Obama administration of blocking greater access to affordable drugs in a bid to win the pharmaceutical companies’ support for its healthcare overhaul.

Organizations such as Doctors Without Borders and Oxfam International — an anti-poverty group — said they had hoped President Obama would join them in the fight to make generic drugs available to combat disease in impoverished countries.

But “it appears that Obama appointees are continuing to work from the playbook of the last administration,” said Oxfam policy advisor Rohit Malpani. The British-based group had opposed President George W. Bush’s trade policies as being detrimental to public health. (LA Times)

This is not surprising, I suppose. Obama is pretty much a centrist and received support from some of these enterprises during the election campaign. He has apparently cut some sort of deal with Big Pharma regarding health care reform, so we cannot expect that he would support anything that would allow more access to generics.

American progressives have not been too thrilled with Obama so far on a variety of issues. Perhaps we can add this one to the list.