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Bob Zoellick and Medicine Patents in Poor Countries

Big pharma was shaken by Zoellick's first year as US Trade Representative. By early 2002, things had changed.
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First the good, then the bad, and then: what's next?

Good Bob

When Bob Zoellick was appointed George W. Bush's choice for United States Trade Representative (USTR), public health groups, like ours, were concerned. Would Zoellick retain USTR's very new policy (announced by President Clinton on December 1, 1999, at the chaotic Seattle WTO ministerial) to consider the impact of trade policy and medical patents on public health in developing countries?

Or, as many expected, would he reverse policy and turn USTR back over to big pharma, and use the agency as a club to push for tougher rules on patents and other intellectual property protections on medicines?

Zoellick surprised most people by announcing he would retain the newer public health-friendly approach, and also persuaded George W. Bush to keep intact Executive Order 13155, which President Clinton had issued a year earlier (May 10, 2000), prohibiting federal employees from seeking "TRIPS Plus" intellectual property protections in sub-Saharan Africa, when it interfered with access to treatments for AIDS. But this was not all.

Bill Clinton had actually filed a WTO case against Brazil in January 2001, days before he left office, over Brazil's efforts to use compulsory licensing of patents to promote local production of AIDS drugs. The case was very controversial, and the subject to criticism by activists, and the subject of Tina Rosenberg's influential New York Times account of AIDS treatment in Brazil. Zoellick dropped the case, after a (secret) deal with Brazil to consult with the U.S. before issuing such licenses.[1]

In November 2001, resisting enormous pressure from pharmaceutical CEOs, Zoellick signed on to the historic and much praised Doha Declaration on TRIPS and Public Health. Among other things, this declaration declared:

We agree that the TRIPS Agreement does not and should not prevent members from taking measures to protect public health. Accordingly, while reiterating our commitment to the TRIPS Agreement, we affirm that the Agreement can and should be interpreted and implemented in a manner supportive of WTO members' right to protect public health and, in particular, to promote access to medicines for all.

In this connection, we reaffirm the right of WTO members to use, to the full, the provisions in the TRIPS Agreement, which provide flexibility for this purpose.

Bad Bob

Big pharma was shaken by Zoellick's first year as USTR. By early 2002, things had changed. With regular meetings with Rove and Josh Bolten, the pharma companies were able to closely dictate USTR policy on a number of issues. By the end of 2002 USTR was receiving in some cases, hourly phone calls from the White House on negotiations over how to implement the 2001 agreement. The results were not pretty. But from our perspective, it seemed as though the problem was the White House, and in particular Rove and Bolten, and not Zoellick.

In any event, Zoellick devised a new and highly effective way to push higher IPR rules for developing countries -- they were put into bilateral agreements where the poor countries had almost now power to resist. Zoellick the technocrat, was worse than many ideologs, in terms of the impact. In this case, competence was not a good thing.

Zoellick then moved on, and the next two USTR chiefs were increasingly worse than Zoellick on these issues.

All of this pushed poor countries in ways that make a mockery of the promises the U.S. made in 2001, at Doha.

What's next?

The World Bank is supposed to be an advocate for the poor. Under Wolfowitz, as under his predecessor, the Bank took in pharmaceutical industry personnel to deal with sensitive procurement and pharmaceutical policy issues, with almost no conflict of interest protections. But Wolfowitz did not completely prevent the World Bank from doing the right thing. The record was mixed.

Zoellick comes at a time when the World Bank is being asked to represent the poor in debates over the role of intellectual property protection and development. He doesn't like big pharma, but he has been a team player on many occasions, so it will be interesting to see what he does with his new job, with his benefactor leaving office January 2009.

I hope we see Good Bob, and not Bad Bob.

[1] Brazil has never used this provision in its patent law. This year Brazil issued it's first compulsory license on an AIDS drug, under a different part of their law.

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